On August 19, 2022, the United States Department of Health and Human Services Office of Inspector General (HHS OIG) posted Advisory Opinion 22-16 to its website, regarding HHS OIG’ decision to not impose sanctions in connection with a program that offered $25 gift cards to Medicare Advantage plan enrollees who completed an online educational program about the potential risks, benefits, and expectations related to surgery.
The online educational program provides customized educational information to Medicare Advantage plan enrollees who face potential surgery in connection with their diagnosis. It contains two modules, one for patients who may face a decision regarding surgical versus non-surgical treatment options and another for patients who have already opted to undergo surgery, and is designed to “enhance the patient experience, increase patient literacy about surgery, reduce the incidence of inappropriate surgeries, and mitigate complications, errors, and infections for those surgeries that do occur.”
Enrollees to the program are only able to receive the $25 gift card after completing the first module and can only receive one $25 gift card per year. Additionally, the program does not refer to, recommend, or include any information about certain medical providers, practitioners, suppliers, or services. It only directs patients to contact their own primary care provider for additional information.
In the Advisory Opinion, HHS OIG concludes that the program does implicate the Anti-Kickback Statute because the $25 gift card is remuneration that might induce Medicare Advantage plan enrollees to self-refer to a certain Medicare Advantage plan offered by the Medicare Advantage Organization that arranges for the provision of federally reimbursable items and services. However, HHS OIG will not impose sanctions against the offeror of the educational program because the program presents a low risk of fraud and abuse under the Anti-Kickback Statute.
HHS OIG cited several factors that led it to its ultimate conclusion to not impose sanctions. One, HHS OIG noted that the educational program is not likely to increase costs to Federal health care programs or result in inappropriate utilization, but instead might lead to a reduction in inappropriate utilization and decreased Federal health care program costs. Additionally, HHS OIG felt that the program was unlikely to meaningfully influence a beneficiary’s selection of a particular Medicare Advantage plan because the program is not advertised. While the program’s gift cards may influence beneficiaries to re-enroll with the same Medicare Advantage Organization the next year, there are many factors that come into play with that decision and its likely that the risk of influence on the re-enrollment decision is reduced by the limited frequency and modest value of the gift cards.
Additionally, because the program does not refer or recommend any particular provider, practitioner, supplier, or service, it does not implicate the Beneficiary Inducements Civil Monetary Penalty.
Advisory Opinion 22-16 is the latest in a string of HHS OIG advisory opinions that address arrangements involving remuneration to Federal health care program beneficiaries.