/>iYesterday, the OIG released a Special Fraud Alert related to: (1) marketing arrangements between Medicare Advantage Organizations (“MAOs”) and health care professionals (“HCPs”), and (2) arrangements between HCPs and MA plan agents and brokers. In the Alert, OIG states that these types of arrangements may implicate the Federal anti-kickback statute (the “AKS”) and could result in unfair competition and improper steering of Medicare beneficiaries. Despite flagging these concerns, the Alert fails to offer specific, practical guidance on the types of arrangements that would or would not violate the law, and therefore does little to alleviate industry-wide confusion as to how to compliantly engage in beneficiary outreach and support.
Payments Addressed by the Alert
The Alert addresses two categories of payments. First, the OIG discusses MAO payments to HCPs or their staff “in exchange for referring patients to the MAOs’ plans”, including providing “gift cards or in-kind payments” and its concerns that such payments “can result in individuals being enrolled in MA plans that fail to meet the enrollees’ needs” and can be used “to selectively target individuals for enrollment who are expected to result in increased profits to the MAO or, conversely, avoid or discourage enrollment of individuals who are expected to be more costly.”
Second, OIG discusses “payments from HCPs to agents and brokers”, including “to refer Medicare enrollees to the HCP to become designated as the primary care provider for the enrollee at their particular MA plan.” OIG explains that enrollees “may rely on the recommendation of an agent or broker in making HCP selection decisions that may not suit their particular needs.”
OIG’s Identification of Suspect Characteristics
The Alert identifies eight “suspect characteristics” related to these types of payments, which “taken together or separately, could suggest that an arrangement presents a heightened risk of fraud and abuse”, although the list is illustrative and not exhaustive, and the presence or absence of one of these factors is not determinative of the legality of an arrangement. These characteristics are broadly framed and offer little insight that would apply to analyzing the risk posed by particular arrangements:
- Payments to HCPs or their staff –
- In exchange for referring or recommending patients to a MAO or MA plan
- Disguised as payments for services but actually intended as payment for referrals to particular MA plan
- In exchange for sharing patient information that may be used by MAOs to market to potential enrollees
- That are contingent upon or vary based on demographics or health status of individuals enrolled or referred for enrollment in an MA plan
- That vary based on the number of individuals referred for enrollment in an MA plan
- Payments by HCPs –
- That are contingent upon or vary based on the demographics or health status of individuals enrolled or referred for enrollment in an MA plan
- To recommend the HCP to a Medicare enrollee or refer an enrollee to the HCP
- That vary with the number of individuals referred to the HCP
Many of these ‘suspect characteristics’ do little more than restate the terms of the AKS, affirming that payments to recommend or refer may be problematic. The Alert does not define ‘recommend’ or ‘refer’, including in the particular context of MAO payments to HCPs or HCP payments to agents or brokers. It also does not address legitimate services that may be exchanged between the parties, or how arrangements related to such services may be distinguished from the types of arrangements with which the OIG is concerned.
Takeaways
As the Alert recognizes, the MA plan selection process may be “confusing, difficult and overwhelming” for many beneficiaries. Beneficiaries may look both to their HCPs and to trusted brokers and agents to help them navigate various aspects of this process. HCPs may have important insights into plan types that may support patients with particular clinical needs. In fact, CMS regulations at 42 CFR 422.2266(c) recognize the important role that HCPs can play in the patients’ selection of an MA plan. Meanwhile, brokers and agents may play an important role in educating enrollees about their PCP options and helping them to connect to different potential providers, as well as in supporting enrollees with different administrative tasks. The ability of these parties to work effectively together to support enrollees through this process could be imperiled by the OIG’s failure to offer clear guidance related to these types of arrangements.
We will continue to monitor agency guidance and enforcement related to the types of payments addressed by the Alert and are available to discuss and help in navigating related compliance considerations.
