The plan of a healthcare consulting firm (the “Firm”) to give gift cards to physicians in exchange for referrals to new customers does not violate the Federal Anti-Kickback Statute (the “AKS”), according to an Advisory Opinion from the U.S. Department of Health and Human Services (“HHS”) Office of Inspector General (“OIG”). The Firm provides practice optimization services including data analytics services, electronic health record consulting services, compliance monitoring, and assistance with Merit-Based Incentive Payment System (“MIPS”) performance measures and submissions. Importantly, the Firm does not provide any services, nor does it invest in or own any other entity that provides services, that would be paid for, in whole or in part, directly or indirectly, by a Federal health care program.
Under the proposed plan, the Firm would give current customers $25 gift cards in exchange for recommending its consulting services to other physicians. If the recommendation were successful, the recommender would receive an additional $50 gift card.
The Anti-Kickback Statute
The AKS makes it a criminal offense to knowingly and willfully offer, pay, solicit, or receive any remuneration to induce, or in return for, the referral of an individual to a person for the furnishing of, or arranging for the furnishing of, any item or service reimbursable under a Federal health care program.[1] AKS violations are punishable by fines up to $100,000, imprisonment up to 10 years, or both, and exclusion from Federal health care programs such as Medicare and Medicaid.
Analysis
HHS determined that the gift cards, despite being given to physicians in exchange for referrals for consulting services, would not violate AKS because (i) none of the services provided by the consulting firm are reimbursable in whole or in part by a Federal health care program, and (ii) the Firm does not own or invest in any other entity that provides items/services that can be paid for by a Federal health care program. It is important to note that a similar scheme that provided gift cards in exchange for referrals for reimbursable services likely would be an AKS violation, as the gift cards (or other remuneration) would then be given in exchange for services payable by a Federal health care program.
Key Takeaways
Any remuneration paid in exchange for referrals should only be for items and/or services that are not reimbursable, in whole or in part, directly or indirectly, by a Federal health care program. Any remuneration given in exchange for referrals or recommendations for services that can be reimbursed by a Federal health care program likely would prompt HHS scrutiny. Any entity providing compensation, whether in the form of gift cards or other remuneration, in exchange for referrals must be careful not to provide any service that is reimbursable by a Federal health care program, nor should the compensation be provided in exchange for the purchasing, arranging for, referring, or recommending of services that are reimbursable by a Federal health care program.
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Husch Blackwell’s Healthcare attorneys offer comprehensive counsel and solution-driven services that address healthcare industry pressures. For more information about the Anti-Kickback Statute or other regulatory insights, please contact Ragini Acharya and Matt Deutsch.
[1] Section 1128B(b) of the Social Security Act.