This opinion relates to the provision of gift cards to certain Medicare Advantage (“MA”) plan participants who complete certain steps in our online patient education program.
The full text of Advisory Opinion 22-16, including statements of fact considered by the OIG, can be accessed at https://oig.hhs.gov/compliance/advisory-opinions/22-16/.
The OIG decides not to impose administrative sanctions on complainants¹ in connection with the arrangement².
It is our view that the OIG’s conclusion is based on the presence of all factors in the arrangement. We anticipate that in the absence of one or more of these factors, the OIG may reach a different conclusion.
Below is a summary of the OIG’s legal analysis.
A gift card provided by a requester to a registrant (who is a beneficiary of a federal medical program) is a reward that may refer the registrant to a specific MA plan (Medicare Advantage Organization – “MAO”) that uses the program. , the arrangement involves the federal AKS. Additionally, in at least some instances, gift cards are the equivalent of cash as they are for large stores or retailers, which are online vendors selling a variety of items. Nonetheless, the OIG concludes that this arrangement provides sufficiently low risk of fraud and abuse under the federal AKS for the following reasons.
- This arrangement is unlikely to increase costs inappropriately for federal health care programs and may have the opposite effect. The program’s objectives are likely to have the effect of improving patient safety and reducing inappropriate use, and may also reduce federal health care program costs for the program to work as intended.
- The OIG does not advertise the Program or Arrangement to beneficiaries to whom the Requestor is not a Subscriber, and the standard contract between the Requestor and the MAO prohibits the MAO from including information about the MAO, so that the Arrangement is We believe it is unlikely to have a significant impact on the choice of MA plan in Gift cards in her MAO marketing communications to prospective members. The OIG recognizes that programs may affect a registrant’s re-enrollment decision, but the OIG believes there are various factors that influence a registrant’s decision to re-enroll. Additionally, the limited frequency and modest value of rewards creates the risk of limited influence. Attention was drawn to the safeguards put in place by the requestor to monitor the functioning of the arrangement and ensure compliance.
- The Program is non-referral or non-endorsed and does not contain information about specific providers, suppliers or services, and this arrangement affects competition among providers, practitioners or suppliers Not likely.
The OIG has concluded that no civil penalties for beneficiary incentives (“CMP”) are involved despite the provision of gift cards under the arrangement that reward Medicare program beneficiaries. OIG determines that the compensation offered is unlikely to influence a registrant’s choice of a particular provider, practitioner, or supplier. To the extent that it may affect a particular MA Plan, the OIG notes that the MA Plan is not a provider, implementer, or supplier for the purposes of a Beneficiary Solicitation CMP.
Note:
An OIG Advisory Opinion is a very specific fact and by its terms is limited to the facts presented, to the particular requester, and subject to certain limitations set forth in the Advisory Opinion.
The above is a rough overview and consultation with legal counsel is recommended for a more complete review and discussion of the Advisory Opinion.
¹”Requestor” operates a shared decision-making, online learning tool that educates patients about the potential risks, benefits and expectations associated with surgery.
²”Arrangement” is a $25 gift card program that pays Medicare Advantage Plan participants when they complete educational modules and surveys. Education modules educate patients about the potential risks, benefits, and expectations associated with surgery without referring enrollees to specific providers. This module is designed to improve the patient experience, increase patient literacy regarding surgery, reduce the incidence of inappropriate surgery, and reduce surgical complications, errors, and infections that occur.
