On January 5, 2026, OIG posted Advisory Opinion No. 25-12 regarding a home care agency’s proposal to “market sign-on bonuses to prospective employees of its home care agency with the intention of employing those individuals for the provision of services to other individuals, who most often would be family members of the prospective employees (the ‘Proposed Arrangement’).” The OIG concluded that the Proposed Arrangement would result in a prohibited offer of remuneration under both the Federal Anti-Kickback Statute (AKS), and the civil money penalties law relating to beneficiary inducements (the “Beneficiary Inducements CMP”) and not fall within the statutory exception and regulatory safe harbor for employees. Because OIG also concluded that the risk of fraud and abuse was not low, OIG issued an unfavorable advisory opinion.
Background
The requestors (the Agency) of the advisory opinion operate a home care agency in a state where Medicaid covers in-home support services (Services) through waiver programs and a Medicaid initiative. Eligible individuals (Clients) may select attendants (Attendants) of their choice, who do not have to be certified or licensed, to provide personal care, homemaker services, and health maintenance activities. In addition to employing Attendants, the Agency is responsible for providing adequate staffing for patient care, training, supervising health maintenance activities, and submitting claims for Medicaid reimbursement. Importantly, the Agency certified that its Attendants would primarily be family members of Clients and would act as decision-makers in selecting the Agency to provide Services.
Proposed Arrangement
The Agency proposed to market employment opportunities to prospective Attendants, advertising a sign-on bonus (Sign-On Bonus), which would only be described as the amount of the bonus, in recruitment materials distributed via print, digital media, and social platforms, which it represented was necessary to compete with other home care agencies.
Notably, the Agency certified to OIG that the purpose of the Sign-On Bonus was to entice prospective Attendants to choose the agency over competitors for the provision of services to their family members. Once employed, the Attendants would be bona fide employees.
OIG Analysis and Conclusion
The OIG found that the Proposed Arrangement implicates both the AKS and the Beneficiary Inducements CMP because the Sign-On Bonus would be offered to individuals expected to act as decision-makers for Clients in selecting the agency for Medicaid-reimbursable services.
The OIG considered whether the Proposed Arrangement satisfies the statutory exception or regulatory safe harbor for employees but found otherwise, because the employment is inextricably linked to the referral of the Attendant’s relative, the Client, to the Agency for Services. Thus, OIG concluded that the advertisement of the Sign-On Bonus operates as a solicitation for a guaranteed referral prior to employment, rather than a more typical sign-on bonus where an employer might hope for, but not be guaranteed, future referrals. The OIG determined that the Proposed Arrangement could result in Attendants deciding on a home care agency due to the sign-on bonuses rather than the quality of the Agency and its competitors. Resultingly, OIG concluded that the Proposed Arrangement, if undertaken, would constitute grounds for the imposition of sanctions under the AKS and the Beneficiary Inducements CMP.
