After a long line of opinions scrutinizing the use of rewards programs offered by providers, the Department of Health and Human Services’ Office of Inspector General (“OIG”) issued Advisory Opinion 22-16 on August 19, 2022– a favorable opinion for the provision of gift cards to Medicare Advantage (“MA’) plan enrollees who complete educational modules as part of an online surgical treatment learning tool.

The opinion adds flexibility to existing opinions on gift cards and patient engagement programs and, while binding only on the requestor, provides insight into the OIG’s evolving view of these programs.

The Program

Under the program evaluated by the OIG, a vendor to a Medicare Advantage Organization (“MAO”) will provide enrollees, who may be eligible to undergo a surgery, with information about their diagnosis and treatment options. Importantly, the program only offers information to enrollees; it does not refer and/or propose any specific treatment or providers to those enrollees. Use of the program is voluntary and open to all enrollees, not just those who elect to undergo surgery or are facing a more immediate decision regarding surgery.

Under the program, the enrollees also could receive a $25 gift card to a retailer if they complete a module along with a survey through the Program, which implicates both the Federal Anti-Kickback Statute (“AKS”) and the Beneficiary Inducement Civil Monetary Penalty Statute (“Beneficiary Inducement CMP”) because the $25 gift card could induce enrollees to self-refer to a particular MA plan. The gift cards could be also be used as cash equivalent at some retailers because those retailers offer a “wide variety of items.” Enrollees may also receive related mailings and email correspondence with information about the program, although information about the program would not be included in the MAO’s marketing communications to beneficiaries.

OIG Analysis

Applying familiar factors for beneficiary targeted remuneration, the OIG concluded that the program presents a sufficiently low risk for fraud and abuse under the AKS because:

  1. It aims to improve patient literacy, which potentially decreases (rather than increases) Federal health care program costs;
  2. The risk of meaningfully influence an enrollee’s selection of a particular MA plan is low;
  3. It is unlikely to impact competition amount health care providers, practitioners, or suppliers; and
  4. The remuneration provided to enrollees, i.e., the gift card, is unlikely to influence an enrollee’s selection of a particular provider, practitioner, or supplier.

The OIG ultimately concluded that the gift card did not implicate the Beneficiary Inducement CMP because it would be provided without any referral or recommendation of any providers or services. As a result, the gift card would be unlikely to influence an enrollee’s selection of a particular provider, practitioner, or supplier. Additionally, OIG confirmed it does not view an MA plan as a provider, practitioner, or supplier for purposes of the Beneficiary Inducement CMP.

Conclusion

MAOs continue to seek creative mechanisms to improve patient health and patient engagement for their enrolled population. While not binding on any party other than the Requestor, this opinion offers flexibility to structure arrangements that reward patients for participating in educational programs to improve patient care circumstances and to decrease costs to Federal health care programs, including through the use of contracted vendors. Notably, however, OIG declined to comment on whether the vendor’s provision of the gift cards would be permissible under MAO marketing rules.

The authors of this blog post will continue to track developments related to arrangements that reward patients for participating in similar efforts, including reconciliation of this opinion with the MA regulations specific to reward programs.

Please reach out to the authors or other health care attorneys at Reed Smith with whom you work if you have any questions about how this opinion or the related regulations might affect your organization.