This anti-kickback clarification could keep your staff out of jail. I wanted you to see it.
What About Gifts Cards and Gift Certificates?
A key question for providers, especially marketing staff members, is whether they can give referral sources gift cards or gift certificates. This question is equally important for referral sources that may be offered gift cards or gift certificates by providers to which they make referrals. The answers to these questions are based on the federal antikickback statute, which says, in part:
"(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 this subchapter, 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 this subchapter,
shall be guilty of a felony and upon conviction thereof, shall be fined not more than $25,000 or imprisoned for not more than five 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 this subchapter, 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 this subchapter,
shall be fined not more than $25,000 or imprisoned for not more than five years, or both..."
First, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services has clearly stated that providers may not give cash and referral sources may not accept cash in exchange for referrals.
Likewise, on page 88,397 of the Federal Register on December 7, 2016, the OIG clearly stated that gift cards and gift certificates are “cash equivalents,” and are not protected by any exception or safe harbor to the anti-kickback statute. The OIG said, “Consistent with our long-standing guidance, we agree with the commenters who recommended that the remuneration cannot be cash or cash equivalents (such as checks or debit cards).”
The OIG reiterated this prohibition in OIG Advisory Opinion No. 20-08, posted on December 30, 2020: “as we have explained, such gift cards are…considered cash equivalents that are not protected by the exception.”
So, there we have it! Providers who want referrals cannot give gift cards or gifts certificates to referral sources and referrals sources cannot accept them. Recent enforcement action with regard to this prohibition has been especially vigorous towards case managers/discharge planners at hospitals, rehab facilities, skilled nursing facilities (SNFs), and assisted living facilities (ALFs). Just say “no” to gift cards and gift certificates!
©2021 Elizabeth E. Hogue, Esq. All rights reserved.
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