On December 11, the U.S. Department of Health and Human Services Office of Inspector General (OIG) issued a Special Fraud Alert (SFA) on what it refers to as “suspect” marketing schemes involving “questionable payments and referrals” between Medicare Advantage (MA) plans, healthcare professionals (HCPs), and third-party marketers (such as agents and brokers) that pose fraud and abuse risk under the federal Anti-Kickback Statute (AKS).
The SFA describes two categories of payment-for-referral schemes that OIG views as suspect:
- Payments by MA Organizations (MAOs) to HCPs for Referrals. The SFA states that payments from MAOs to HCPs for referring patients to the MAOs’ plans are “a substantial area of risk.” MA regulations, the SFA notes, prohibit HCPs from accepting compensation from MAOs for marketing and enrollment activities. The SFA states that suspect payments—which could include gift cards or in-kind remuneration—may result in beneficiaries enrolling in plans not suited to their needs or enrolling in plans when, ultimately, they would prefer to remain in traditional Medicare. Or, the SFA continues, these payments could be used to selectively target profitable individuals for enrollment, while discouraging high-cost individuals from enrolling.
- Payments by HCPs to Agents and Brokers for Referrals. The SFA identifies payments from HCPs to agents and brokers to refer or recommend MA plan beneficiaries to the HCP as a “second area of risk.” The SFA provides that beneficiaries may be unaware of these financial arrangements when discussing potential HCP selection decisions with the agents and brokers. As with payments from MAOs to HCPs, OIG further states that payments from HCPs to agents and brokers may result in beneficiaries selecting an HCP who is not best suited to their needs.
In addition, the SFA includes a non-exclusive list of what OIG refers to as “suspect” characteristics that, in the agency’s view, could indicate an arrangement presents a heightened risk of fraud and abuse under the AKS:
- An MAO, agent, or broker pays an HCP or their staff for recommending or referring Medicare beneficiaries to the MAO or a particular MA plan, or for sharing patient information the MAO can use to market to potential enrollees.
- An MAO, agent, or broker pays remuneration to an HCP that is contingent upon or varies based on the demographics or health status of Medicare beneficiaries enrolled in or referred to an MA plan.
- An MAO, agent, or broker pays remuneration to an HCP that varies based on the number of individuals referred to an MA plan.
- An HCP pays an agent or broker in a manner that is contingent upon, or varies based on, the demographics or health status of individuals enrolled in or referred to an MA plan.
- An HCP pays an agent or broker to recommend the HCP to a Medicare enrollee or to refer the enrollee to the HCP.
- An HCP pays an agent or broker in a manner that varies with the number of individuals referred to the HCP.
As always, each arrangement must be analyzed on its own merits. Arrangements between MA plans and HCPs or HCPs and agents or brokers can be structured to satisfy a safe harbor to the AKS, or they can be structured in a manner that poses low risk under the AKS.
If you have any questions about the SFA, please contact the authors.