GIFT CARDS: Can You Use Them in Your Health Care Business?

US HHS OIG Advisory Opinion No. 23-15

On January 3, 2024, The United States Department of Health and Human Services Office of Inspector General (US HHS OIG) released a five-page advisory opinion regarding a requestor’s ability to furnish current customer physician practices with certain gift cards in exchange for referring other physician practices to the requestor’s business. The US HHS OIG concluded in its analysis that the proposed arrangement did not violate the federal Anti-Kickback Statute nor did it subject the requestor to any sanctions.

The requestor certified that it neither provided any federally reimbursable services nor did it recommend the purchase of any federally reimbursable services. As a result, the US HHS OIG’s opinion holds that if the requestor does not, by its own declaration, furnish federally reimbursable services or recommend the purchase of any federally reimbursable items or services, then none of the requestor’s identified streams of renumeration implicated the federal law Anti-Kickback Statute.

Interested parties may notice the stark disconnect between the US HHS OIG advisory opinion and the recent string of United States Department of Justice (USDOJ) settlement arrangements with EHR vendors. On July 13, 2023, the USDOJ reached a settlement agreement with NextGen Healthcare Inc. regarding NextGen’s alleged violation of the federal Anti-Kickback Statute. Specifically, the US DOJ alleged that the electronic health record vendor violated federal law when it provided remuneration to relevant decision-makers in exchange for influencing their decision to purchase their products. The US DOJ’s decision is consistent with previous determinations finding remuneration in exchange for referrals directly violative of the federal Anti-Kickback Statute. Note that in such instances the US DOJ has argued that the guilty parties knowingly and willfully offered and paid remuneration to induce the recipients to refer persons for the furnishing or arranging for the furnishing of requestor products, or to induce the recipients to purchase, lease, order, or arrange for items for which payment was made in whole or in part under federal health care programs.

Interested parties should note that the US HHS OIG’s advisory opinion is limited in both scope and application and should not be construed to extend to other situations. After a careful reading of the different set of facts at issue, it appears that the US HHS OIG’s conclusion rests on the requestor’s certification that it does not furnish nor recommend federally reimbursable items or services. As a result of the potentially disparate conclusions reached by US HHS OIG and DOJ, it behooves any potentially affected parties to review all applicable guidance, up to and including requesting an advisory opinion, before implementing any questionable reimbursement and/or gift program.

If you have any further questions or concerns regarding the US HHS OIG guidance, please contact David R. Ross, Esq., Shareholder, at (518) 312-0167 or via e-mail at dross@oalaw.com. Colin D. Green, Law Clerk, assisted in the writing of this article.