On August 19, the Department of Health and Human Services Office of Inspector General (“OIG”) posted a favorable advisory opinion, AO 22-16, with respect to the provision of gift cards to Medicare Advantage (“MA”) plan enrollees who complete certain steps in an online patient education program. This opinion underscores potential flexibility for with Medicare Advantage Organizations (“MAOs”) and their vendor partners to offer incentives to patients to engage in learning and health care engagement activities that may improve health outcomes without inappropriately steering patients toward particular providers or MA plans.

Facts

Requestor and its Decision-Making Tool: The OIG’s opinion addressed a request from a company (the “Requestor”) that operates an online shared decision-making and learning tool, designed to educate patients about the risks and benefits of surgeries. The tool consists of two modules, the first of which is meant to help patients understand their diagnoses and discuss those diagnoses with their treating providers, and to educate patients on non-surgical options, and the second of which is meant to educate patients who select surgery about potential provider types, preparations, and post-operative care. Nothing in the tool recommends any particular health care provider.

Contracts with MAOs: Requestor contracts with MAOs to offer the tool to each MAO’s enrollees for a per-member, per-month fee. 

Gift Cards: Requestor provides a $25 retailer gift card to any enrollee who completes the first module of the program, along with a survey, regardless of the treatment option pursued by the enrollee or any other factors. Enrollees can use the tool multiple times, but are eligible for only one gift card annually. 

Promotion: Requestor sends direct mailings and emails to enrollees about the program, some to all enrollees and some to only enrollees who are likely to face surgical decisions, but does not advertise its tool or the gift card offering to any patients who are not enrolled with a contracted MAO. MAOs are also contractually prohibited from advertising the gift card offering in their marketing communications to prospective enrollees.

Analysis

Low Risk of AKS Violation: The OIG concluded that the gift cards implicate the federal Anti-Kickback Statute, since they could cause enrollees to self-refer to MA plans offered by MAOs contracting with the Requestor, but that it would not sanction the arrangement based on its low risk of fraud and abuse. In evaluating risk, the OIG highlighted several factors:

• The gift card offer is not likely to increase costs to federal health care programs (“FHCPs”) or result in inappropriate utilization, and might have the opposite effect by improving patient health care literacy.

• The gift card offer is not likely to materially influence a potential enrollee’s selection of a particular MA plan, given that advertising is limited to current enrollees, and that re-enrollment decisions are likely based on a broad range of other facts, as well as the limited frequency and modest value of the rewards.

• The gift card offer is not likely to impact competition between health care providers, since the tool does not recommend particular providers.

BIP Not Implicated: The OIG also concluded that the gift card offer would not implicate the beneficiary inducement prohibition, since the tool does not recommend particular provider, and the beneficiary inducement prohibition applies only to remuneration that could influence selection of health care provider, not remuneration that could influence MA plan selection.

MAOs and their partners are increasingly seeking mechanisms to improve patient health and health engagement for their enrolled population. AO 22-16 suggests a welcome flexibility by the OIG with respect to arrangements that reward patients for participating in such efforts. Nevertheless, companies considering implementing patient rewards programs should be mindful of the specific facts underscored in the OIG’s analysis, and consider working closely with counsel to ensure that their programs incorporate appropriate safeguards.