On February 14, 2022, OIG issued Advisory Opinion No. 22-03 analyzing a proposed arrangement under which home health agency (HHA) owners would pay tuition costs of nurse aid certification programs for new employees who are likely to be parents or relatives of medically-fragile children who qualify for Medicaid HHA services. As discussed in further detail below, OIG finds that the proposed arrangement would not generate prohibited remuneration under the federal Anti-Kickback Statute or the civil monetary penalties law (CMP Law), and therefore OIG would not impose administrative sanctions in connection with the arrangement.

FACTUAL BACKGROUND

The Advisory Opinion was requested by owners of HHAs (Requestors) located in a state that has a plan to provide Medicaid reimbursement for HHA services provided by a parent or other relative to a medically-fragile child covered by Medicaid if the parent or relative is (i) certified in the state as a certified nurse aid (CNA) and (ii) employed by an HHA. Under the proposed arrangement, Requestors would pay tuition costs for new employees hired to work as CNAs who have not yet received CNA certification. Requestors certified the following with respect to the proposed arrangement:

• The vast majority of participants would be parents of medically-fragile children covered by Medicaid. However, tuition reimbursement would be made available to all new employees hired to provide CNA services. Any advertising of the benefit would not reference the potential to provide HHA services to the new employee’s children or relatives.

• All participating employees would be bona fide employees of Requestors.

• Requestors would pay tuition costs directly to the school operating the certification program.

• Continued employment would be contingent upon successfully receiving CNA certification.

• Employees who receive CNA certification but do not remain employed by Requestors for at least 1 year thereafter would be required to reimburse the HHA a prorated portion of the tuition costs, determined based on their actual length of service.

• Reimbursement would be solely dependent upon employment status and not the ability to refer patients. An employee with a child or relative eligible to receive HHA services would not be terminated if the services are obtained elsewhere.

ANALYSIS

OIG finds that Requestors’ payment of salaries and tuition costs could induce parents or relatives of medically-fragile children to refer such children to Requestors’ HHAs for services reimbursable by federal healthcare programs, thereby implicating both the Anti-Kickback Statute, 42 U.S.C. § 1320-7b, and the beneficiary inducement prohibition of the CMP Law, 42 U.S.C. § 1320a-7a(a)(5). However, OIG concludes that the salaries and tuition costs constitute “amount[s] paid by an employer to an employee . . . for employment in the furnishing of any item or service for which payment may be made in whole or in part under Medicare, Medicaid or other Federal health care programs” and are therefore permissible under the Anti-Kickback Statute’s statutory exception and regulatory safe harbor for employees. See 42 C.F.R. § 1001.952(i). OIG reached this conclusion based on Requestors’ certification that participating employees would be bona fide employees from the time they are hired (i.e., before and after receiving CNA certification). OIG further concludes that the arrangement would not violate the beneficiary inducement prohibition of the CMP Law because the CMP Law contains an exception for any practice permitted under an exception to the federal Anti-Kickback Statute or its safe harbor regulations. Because the proposed arrangement would not generate prohibited remuneration under the federal Anti-Kickback Statute or the CMP Law, OIG would not impose administrative sanctions in connection with the arrangement.

The Advisory Opinion is limited in scope to the proposed arrangement and can only be relied upon by Requestors. However, it provides a helpful indication of how OIG might respond to similar requests.

The Advisory Opinion is available here.