OIG Opinion on Medicare Patient Education Gift Cards as Incentives | Harris Beach LLC

This notice relates to the provision of a gift card to certain Medicare Advantage (“MA”) plan enrollees who complete specific steps in an online patient education program.

The full text of Advisory Opinion 22-16, including a statement of the facts considered by the OIG, can be viewed here: https://oig.hhs.gov/compliance/advisory-opinions/22-16/ .

The OIG decides that it will not impose administrative penalties on the claimant¹ as part of the arrangement.²

We are of the view that OIG’s conclusion is based on the existence of all the factors of the Arrangement. We expect that the OIG may reach a different conclusion if one or more of these factors did not exist.

Here is a summary of the OIG’s legal analysis:

The arrangement involves the federal AKS because the gift card the plaintiff provides to enrollees (who are beneficiaries of the federal health care program) is compensation that could induce enrollees to self-refer to a plan. particular MA (Medicare Advantage Organization – “MAO”) that uses the program. Also, in at least some cases, gift cards will be a cash equivalent because they are for a big box store or retailer that is an online seller selling a wide variety of items. Nevertheless, for the following reasons, the OIG concludes that the arrangement presents a sufficiently low risk of fraud and abuse under the federal AKS:

  1. The arrangement is unlikely to increase inappropriate costs for federal health care programs and could backfire. Program goals can have the effect of improving patient safety and reducing inappropriate use, and they could also reduce federal health care program costs to make the program work as intended.
  2. The OIG believes that the arrangement is unlikely to significantly influence a recipient’s choice of a PA plan because the applicant does not advertise the program or arrangement to recipients who are not registrants and the applicant’s standard contract with MAO prohibits MAO from including gift card information in MAO’s marketing communications to prospective registrants. The OIG recognizes that the program may impact enrollees’ re-enrollment, but the OIG believes that there are a wide range of factors that influence enrollees’ decision to re-enroll. In addition, the limited frequency and modest value of the reward creates a limited risk of influence. The safeguards implemented by the applicant to monitor and ensure compliance with the characteristics of the arrangement have been noted.
  3. The arrangement is unlikely to impact competition among healthcare providers, practitioners or suppliers due to the non-referral or non-recommendation of the program and the lack of information about a particular practitioner, provider or service.

The OIG concludes that civil monetary penalties (“CMP”) are not involved, despite the provision of a gift card under the arrangement which is compensation for a Medicare beneficiary. The OIG determines that the compensation provided is not likely to influence registrants’ selection of a particular provider, practitioner, or supplier. To the extent that this may influence a particular MA plan, the OIG notes that MA plans are not a provider, practitioner, or provider for the purposes of the CMP on beneficiary incentives.

To note:
OIG advisory opinions are highly fact-specific and, by their terms, are limited to the facts presented, specific claimants, and are subject to specific limitations set forth in the advisory opinions.
The above is a high level summary and consultation with an attorney is recommended for a fuller review and discussion of the advisory opinion.

¹“Requestor” operates a shared decision-making e-learning tool that educates patients about the potential risks, benefits, and expectations of surgeries.
²“Arrangement” is a $25 gift card program that pays Medicare Advantage plan enrollees when they complete a training module and survey. The education module educates patients on the potential risks, benefits, and expectations of surgeries without referring enrollees to specific providers. The module is designed to improve the patient experience, increase knowledge about surgery, reduce the incidence of inappropriate surgeries, and mitigate complications, errors and infections for surgeries that do occur.

Michael N. Clark