Part 7: What Can Providers Give to Patients? - Case Example

The following article provides an example of how the OIG analyzes cases of free items or services provided to patients.
Providers, including marketers, are tempted to give patients and potential patients free items and services. While providers usually have good intentions, they must comply with applicable requirements. 
As Part 1 of this series indicates, there are two applicable federal statutes: the Anti-Kickback Statute (AKS) and the Civil Monetary Penalties Law (CMPL). Part 1 also makes it clear that there are a number of exceptions. If providers meet the requirements of applicable exceptions, they can give patients and potential patients free items and services that would otherwise violate applicable requirements. 
Part 2 describes an exception for items and services of nominal value with a retail value of no more than $15 per item or $75 in the aggregate per patient on an annual basis that may be given by providers to beneficiaries. Providers may not, however, give cash or cash equivalents.
Part 3 describes the circumstances under which providers may give free items and services to patients with demonstrated financial need.
Part 4 summarizes recent guidance from the Office of Inspector General (OIG) about giving incentives to promote vaccination against COVID-19.
Part 5 describes an exception for preventive items or services.
Part 6 describes an exception for free items or services that promote access to care.
This article provides an example from OIG Advisory Opinion No. 09-11 that shows how the OIG applies exceptions described in this series of articles.
The request for this Advisory Opinion was submitted by a Hospital that provides free blood checks to anyone who requests the service during certain hours. The Hospital said that it does not advertise free blood pressure checks that are provided by a member of the nursing staff who follows specific guidelines and procedural checklists.
The Hospital also said that free blood pressure checks are not conditioned on use of any other goods or services from the Hospital or any other particular provider. No discounts are offered for follow-up services. Recipients of blood pressure checks are advised to see their own practitioners when results are abnormal. The Hospital does not bill any payor, including the Medicare and Medicaid Programs, for this service.
In its analysis, the OIG first referenced the exception for preventive services described in Part 5 of this series.
The OIG then pointed out that the fair market value of this service, especially if recipients use the service more than once, may exceed the limits of $15 per service or $75 per year described in Part 2 of this series. So, said the OIG, the services may constitute a kickback.
According to the OIG, blood pressure checks are preventive services. The key question, however, is whether the free care promotes the provision of other, non-preventive care reimbursed by the Medicare and/or Medicaid Programs.
In this case, the OIG said that it is unlikely that free blood pressure checks will result in the provision of other services. The factual basis for this conclusion in the Advisory Opinion was that the Hospital did not:
  • Make appointments for individuals with its practitioners for those with abnormal results
  • Offer individuals discounts for additional covered services
  • Otherwise promote its particular programs
“In sum,” said the OIG, “the Arrangement is appropriately crafted so as to avoid improper ties for the provision of other services…For these reasons, we conclude that we would not impose administrative sanctions arising in connection with either the anti-kickback statute or the CMP on the Hospital in connection with the Arrangement.”
Providers should certainly use all of the exceptions described in this series to provide better quality of care for patients.
©2021 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.


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