On August 3, 2021, OIG issued an advisory opinion, Advisory Opinion No. 21-10, allowing for a dentist to provide free routine and emergency dental services to indigent Medicaid beneficiaries who are residents of nursing facilities. Under the arrangement, the dentist currently provides dental services to residents of nursing facilities as a preferred provider of a commercial dental insurance company in exchange for a per-member, per-month fee for all dental services provided. The dentist requested permission to provide free routine and emergency dental services to indigent Medicaid beneficiaries who reside at the facilities but do not participate in the commercial insurance provider’s program. After careful consideration of the facts, OIG determined that the proposed arrangement would not implicate the federal Anti-Kickback Statute (AKS) or Beneficiary Inducements CMP.

OIG considered the following factors in deciding that the federal AKS was not implicated:

  • The provision of free services did not result in referrals being made for services reimbursable by a federal health care program;

  • The dentist did not have an ownership interest or investment interest in any other entity that provides a service reimbursable by a Federal health care program; and

  • There was no nexus between the renumeration (free service) and referrals for services payable by a federal health care program (note that other referrals for services covered by private insurance are not prohibited).

OIG considered the following factors in deciding that the Beneficiary Inducements CMP was not implicated:

  • The benefit was unlikely to influence a beneficiary’s decision to select a facility just for the free services being provided;

  • The free dental services would not be promoted; and

  • The services would only be available at facilities that provide the dental services to at least one enrollee of the commercial insurance provider.

The full text of OIG Advisory Opinion No. 21-10 is available here.

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