From Barnes & Thornburg, by Jason D. Schultz and Mary Elizabth “Lizzy” Ford:
- The U.S. Department of Health and Human Services’ Office of Inspector General (HHS-OIG) issued Advisory Opinion No. 23-15, permitting a consulting services company to offer gift cards as incentives for physician practices to recommend its services to other physicians.
- The company provides various consulting services, including workflow optimization, data analytics, electronic health record consulting, compliance monitoring, and assistance with Medicare Merit-Based Incentive Payment System (MIPS) matters.
- The proposed arrangement involves three streams of remuneration: gift cards for recommendations and successful referrals, payment for consulting services, and potential higher MIPS reimbursements for customers.
- HHS-OIG determined that the Anti-Kickback Statute (AKS) would not be implicated, as the arrangement does not involve referrals or purchases for which payment may be made under a federal healthcare program.
- The opinion underscores that the AKS is not violated and no sanctions are imposed when the arrangement does not involve referrals or purchases related to a Federal health care program.