It’s estimated that a little more than 42 percent of Americans have been fully vaccinated for COVID-19 and nearly 52 percent have had at least one dose (as of mid June 2021). That has prompted President Joseph Biden to announce a “National Month of Action,” in an effort to get at least 70 percent of U.S. adults at least partially vaccinated by the Fourth of July.
To get there, some people need to be incentivized and folks have been coming up with unique ways to get shots in arms. There have been stories of bars giving out free beer, cities offering cash giveaways and even free trips.
But what about healthcare providers? Can they offer freebies to get federal healthcare beneficiaries (i.e., patients on Medicare, Medicaid or other government payor) into their facilities without facing the prospect of violating the Anti-Kickback Statute or the beneficiary inducements Civil Money Penalty (CMP)?
The answer, according to HHS Office of Inspector General (OIG) is yes, but under certain conditions.
The agency recently posted a notice that in the limited context of the COVID-19 public health emergency, a healthcare provider, supplier, or managed care organization offering or providing a reward or incentive in connection with the beneficiary receiving the COVID-19 vaccine (either one or both doses) would be sufficiently low risk under the federal anti-kickback statute and Beneficiary Inducements CMP if the following safeguards were met:
- The incentive or reward is furnished in connection with receiving a required dose of a COVID-19 vaccine.
- The vaccine is authorized or approved by the FDA as a COVID-19 vaccine and is administered in accordance with all other applicable federal and state rules and regulations and the conditions for the provider or supplier receiving vaccine supply from the federal government.
- The incentive or reward is not tied to or contingent upon any other arrangement or agreement between the entity offering the incentive or reward and the federal healthcare program beneficiary.
- The incentive or reward is not conditioned on the recipient’s past or anticipated future use of other items or services that are reimbursable, in whole or in part, by federal healthcare programs.
- The incentive or reward is offered without taking into account the insurance coverage of the patient (or lack of insurance coverage) unless the incentive or reward is being offered by a managed care organization and eligibility is limited to its enrollees.
- The incentive or reward is provided during the COVID-19 public health emergency, which is set to expire July 20, unless it is extended.
OIG noted that incentives offered by those not affiliated with or connected to a healthcare stakeholder or government entity would have a minimal risk of violating the federal Anti-Kickback Statute or the CMP and likely would not result in an enforcement action, absent some other fraud-related scheme.
OIG also noted that while it attempts to provide an accurate response to questions that are unique to the COVID-19 public health emergency, that does not provide prospective immunity or protection from OIG administrative sanctions or prospective immunity or protection under federal criminal law.
In other words, before you decide to act, it’s best to contact a qualified healthcare attorney who can advise you.
The Health Law Offices of Anthony C. Vitale can assist you in mitigating any risks and defend you should you become the target of an investigation. Contact the firm at 305-358-4500 or send an email to [email protected].