Tis the Season: Gifts to Medicare Patients Nice Gesture or a Crime?

As we approach the holidays, now may be an appropriate time to point out the rules relating to gifts that providers can give to Medicare and Medicaid beneficiaries.

During this time of the year, some healthcare professionals may want to give gifts to their patients, other physicians or even referral sources. Before you do, consider this: It can land you in a heap of trouble with the federal government unless you follow the law.

In December 2016, the Health and Human Services Office of the Inspector General released a policy statement regarding gifts of nominal value to Medicare and Medicaid beneficiaries.

At that time, the OIG raised the nominal value of gifts allowed from having a retail value of no more than $10 per item or $50 in aggregate annually per beneficiary to $15 per item or $75 in aggregate annually per beneficiary.

Under section 1128A(a)(5) of the Social Security Act, enacted as part of the Health Insurance Portability and Accountability Act of 1996, anyone who offers or transfers to a Medicare or Medicaid beneficiary any remuneration that the person knows or should know is likely to influence the beneficiary’s selection of a particular provider, practitioner, or supplier of Medicare or Medicaid payable items or services may be liable for civil monetary penalties of up to $10,000 for each wrongful act. Remuneration includes waivers of copayments and deductible amount and transfers of items or services for free or other than fair market value. However, Congress also expressed its intent that gifts of nominal value be allowed.

It was then up to the OIG to determine what “nominal value” meant. In 2000, it came up with the $10 and $50 figures. Then based on inflation, the agency raised that figure to the current $15 and $75 figures. These gifts may not be cash or cash equivalents.

It is important to note that the Anti-kickback Statute prohibits soliciting, offering, giving, or receiving remuneration in exchange for referrals for items or services covered by federal healthcare programs unless the arrangement fits within a regulatory exception. Violations of the statute can occur if the remuneration is designed to induce referrals, and can result in criminal and civil penalties.

Offering gifts to patients, other providers and vendors, can be a slippery slope. Before doing so, it’s always a good idea to make sure such gifts do not violate any state or federal laws. The Health Law Offices of Anthony C. Vitale can help you avoid potential criminal and civil liability. If you have any questions, contact us at 305-358-4500 or send us an email to info@vitalehealthlaw.com.

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