On January 3, 2024, the U.S. Department of Health and Human Services Office of Inspector General (HHS-OIG) published OIG Advisory Opinion No. 23-15 (the “Opinion”), which addresses a request from a consulting company (the “Requestor”) that “provides consulting services…such as helping practices uncover workflow issues, data analytics services, electronic health record consulting services, compliance monitoring services, bi-annual Medicare Merit-Based Incentive Payment System (‘MIPS’) eligibility checks, annual MIPS-related training, auditing MIPS-related performance measures, and assistance with submitting MIPS data.” The Requestor sought an advisory opinion regarding a “proposal to offer physician practices that are current customers of Requestor certain gift cards for referring potential new physician practice customers (the ‘Proposed Arrangement’).”
The Opinion noted three potential streams of remuneration under the Proposed Arrangement that could implicate the Federal Anti-Kickback statute (the “AKS”): (i) Requestor would give gift cards to physician practice customers who recommend Requestor to potential physician practice customers; (ii) physician practice customers would pay Requestor for consulting services; and (iii) physician practice customers potentially would receive an opportunity to earn a fee as a result of the consulting services in the form of higher MIPS reimbursements from Medicare. However, none of those streams of remuneration was deemed to implicate the AKS. First, “the gift cards…would not be in return for the physician practices making referrals of, purchasing, arranging for, or recommending services that are reimbursable in whole or in part by a Federal health care program…” Second, “Requestor certified that it does not recommend to any customer the purchasing, leasing, or ordering of any item or service for which payment may be made in whole or in part under a Federal health care program…” And third, while “those consulting services might result in higher MIPS-related payments from the Medicare program,” no remuneration as a result of any of these streams would be “in return for referrals for, the purchase of, or arranging for or recommending the purchase of, any item or service for which payment may be made in whole or in part under a Federal health care program.”
The Opinion is noteworthy for several reasons, but the first may be simply the distinction between gift cards given to physicians instead of beneficiaries. Under the Civil Monetary Penalties Law (the “CMP”) or the AKS, arrangements involving gift cards provided to Medicare beneficiaries are typically required to be more limited. For example, in a recent opinion approving an arrangement involving gift cards given to Medicare beneficiaries by a pharmacy relating to its membership program was allowed only if a number of conditions (significantly more burdensome than the above) were present to ensure no gift cards implicated the AKS or the CMP.
In this case, the Opinion is only related to consultants dealing with physicians, so it should provide useful guidance for those types of arrangements.
