Practice Management Alert

Nebraska Subscriber

Answer: There have been some updates to the Anti-Kickback Statute that may affect how your practice incentivizes patients. Gift cards have come under Office for Civil Rights (OCR) scrutiny and may not be compliant with the Nominal Value Exception.

“Big-box” store gift cards are especially problematic. The OCR defines “big-box” as stores that sell a “wide variety of items,” saying “such gift cards are not ‘items or services’ and are considered cash equivalents that are not protected by the exception,” according to the recently updated guidance.

“The OIG [Office of Inspector General] has taken the position that incentives that are only nominal in value (other than cash or cash equivalents) are not prohibited by the statute and currently interprets ‘nominal value’ to mean no more than $15 per item or $75 in the aggregate per patient on an annual basis,” the OCR says.

Patient incentives are tempting, but consider staying away from gift cards to “big-box” stores, say attorneys at Hall Render in recent online analysis. Other important steps: Consider implementing an audit of patient assistance or incentive measures in your annual compliance work plans. Noncompliance could be problematic, in terms of these gift cards, because “interpreting and applying the Nominal Value Exception can be tricky. Its status as an ‘exception’ created through guidance means that a facts-and-circumstances analysis, conducted with a clear understanding of existing regulations and guidance, is usually called for,” the attorneys note.

However, the OCR lists some safeguards you can adopt to make sure you remain compliant, if you feel strongly about this kind of patient safeguard. You can find more information here https://oig.hhs.gov/fraud/docs/advisoryopinions/2020/AdvOpn20-08.pdf.