Under Section 1128A(a)(5) of the Social Security Act (the “Act”), enacted as part of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), a person who offers or transfers “remuneration” to a Medicare or Medicaid beneficiary that the person knows or should know is likely to affect the beneficiary’s selection of a particular health care provider, practitioner, or supplier of Medicare/Medicaid payable services, may be liable for civil monetary penalties.
For purposes of Section 1128A(a)(5) of the Act, remuneration includes waivers of copayments and deductible amounts, as well as transfers of items or services for free or reduced value. Originally, the OIG interpreted “nominal” value to mean $10 per item or $50 in the aggregate per patient on an annual basis. On December 7, 2016, the OIG adjusted these numbers upward, to $15 per item or $75 in the aggregate per patient on an annual basis. The OIG maintained its interpretation that these items may not be cash or cash equivalents. As such, if a gift now falls within the OIG’s new limits, then the gift need not fall into an exception to Section 1128A(a)(5) of the Act.