Anti-Kickback and the Holidays: Think Twice Before Sending or Receiving that Gift

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As the holiday season continues, physicians and other healthcare providers may feel the urge to gift some of their business acquaintances to thank them for referrals they provided during the year. However, it’s important to note that doing so may run afoul of federal and state laws. Also, just because another provider does something doesn’t mean it’s legal.

What is the Anti-Kickback Statute?

The Anti-Kickback Statute 42 U.S.C. § 1320a-7b(b) (AKS), is a federal statute that prohibits the exchange of anything of value which induces the referral of patients for which payment may be made to the federal health care program (e.g. Medicare and Medicaid), unless the arrangement fits within a regulatory exception. The statue is clear in that it punishes either individuals or entities when intent is proven that the person or entity was trying to make or receive patient referrals. The statute even extends to gifts made to non-physicians, such as physician staff. Violators of the statute incur a felony conviction, fines of up to $25,000, and up to five years in prison. The government is also at liberty to attach Civil Monetary Penalties (CMP) which can include additional fines. Violations may also result in exclusion from government funded programs.

Unacceptable gifts

Unacceptable gifts sent or received by physicians or health entities as rewards for referrals include but are not limited to:

·        Expensive dinners

·        Travel vouchers

·        Tickets to sporting events

·        Electronics

·        Gift cards

What is acceptable?

AKS outlines certain exceptions called safe harbors. These are gifts provided during the ordinary course of conducting federal health care business. Such exchanges are deemed necessary and carry a low risk of fraud or financial abuse and include, among others:

·        Payments from an employer to an employee for providing items or services covered by a federal health care program

·        Payments made by a vendor to certain group purchasing organizations.

Outside of the safe harbor exceptions, there is no safe dollar amount when it comes to gifts. Even a small gift — or a product or service of low financial value — that is used to encourage a referral could get a provider in trouble with the law.

Therefore, your safest bet would be to send a personalized holiday card with a thoughtful note thanking your referral source for sending you business.

Conclusion

As the holiday season wraps up, it’s important to plan accordingly when it comes to gifts; don’t end the year doing the wrong thing. Thus, providers and health entities may find it prudent to create a written policy about gift-giving that addresses state laws and the Anti-kickback statute for all staff members and executives. Happy holidays to everyone