| The Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) has repeatedly stated that providers cannot give referral sources/potential referral sources cash or cash equivalents. The OIG says that gift cards are cash equivalents. Now the OIG has taken enforcement action, based on the federal anti-kickback statute (AKS) and the federal False Claims Act (FCA), against MCS Advantage, a Medicare Advantage Plan. The enforcement action is based upon a gift card incentive program implemented by MCS between November 2019 and December 2020. MCS distributed 1,703 gift cards to administrative assistants of providers to induce them to refer, recommend, or arrange for enrollment of 1,646 new Medicare beneficiaries to MCS’ Medicare Advantage Plan. The aggregate cost of the gift cards was $42,575. The AKS states: “(1) Whoever knowingly and willfully solicits or receives any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind- (A) in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program, or (B) in return for purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under a Federal health care program, shall be guilty of a felony and upon conviction thereof, shall be fined not more than $100,000 or imprisoned for not more than 10 years, or both. (2) Whoever knowingly and willfully offers or pays any remuneration (including kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind to any person to induce such person- (A) to refer an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program, or (B) to purchase, lease, order, or arrange for or recommend purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under a Federal health care program, shall be guilty of a felony and upon conviction thereof, shall be fined not more than $100,000 or imprisoned for not more than 10 years, or both.” The OIG investigated and concluded that the gift cards violated the above statute. The gift cards were kickbacks in exchange for referrals. Medicare beneficiaries who were enrolled in the Medicare Advantage Plan as a result of the incentive program resulted in associated premium payments to MCS from the Medicare Program. Consequently, the provision of gift cards and claims submitted based on referrals generated also violated the FCA. MCS agreed to pay $4.2 million to resolve these violations of the AKS and FCA. This amount takes into account MCS’ voluntary termination of the gift card program in December 2020, MCS’ disclosure of relevant facts about the program, and implementation of controls and revisions to internal policies to promote and help ensure future compliance. So, the “verdict” is in yet again. No gift cards may be given to referral sources/potential referral sources.©2022 Elizabeth E. Hogue, Esq. All rights reserved.No portion of this material may be reproduced in any form without the advance written permission of the author. |
