Gifts To Patients?

Elizabeth Hogue, Esq

Dec 9, 2019

There is a lot of talk these days about the relationship between social determinants and health. A key social determinant is, undoubtedly, access to a sufficient amount of nutritious food. What are the current rules about giving food to patients during the holidays?

The Office of Inspector General (OIG) of the U.S. Department of Health and Human Services, the primary enforcer of fraud and abuse prohibitions, announced an increase on December 7, 2016, on limits on free items and services given to patients. Specifically, according to the OIG, items and services of nominal value may be given to patients or potential patients that have a retail value of no more than $15 per item or $75 in the aggregate per patient on an annual basis. The previous limits were $10 per item or $50 in the aggregate per patient on an annual basis.

Under section 1128A(a)(5) of the Social Security Act, persons who offer or transfer to Medicare and/or Medicaid beneficiaries any remuneration that they know or should know is likely to influence beneficiaries’ selection of particular providers or suppliers of items or services payable by the Medicare or Medicaid Programs may be liable for civil money penalties for up to $10,000 for each wrongful act. “Remuneration” includes waivers of copayments and deductibles and transfers of items or services for free, or for other than fair market value.

In the Conference Committee report that accompanied the enactment of these requirements, Congress expressed a clear intent to permit inexpensive gifts of nominal value from providers and suppliers to beneficiaries. In 2000, the OIG initially interpreted “inexpensive” or “nominal value” to mean a retail value of no more than $10 per item or $50 in the aggregate per patient an annual basis. The OIG also expressed a willingness to periodically review these limits and adjust them based on inflation. Consequently, effective on December 7, 2016, the OIG increased the limits of items and services of nominal value that may be given by providers and suppliers to beneficiaries to a retail value of no more than $15 per item or $75 in the aggregate per patient on an annual basis.

Providers may not give cash or cash equivalents. The OIG also says that these amounts may increase again in the future. So, this holiday season providers and suppliers may give patients and potential patients items or services worth $15 per item or $75 in the aggregate at retail, as described above.

In view of some patients’ needs for basic items, such as food, these amounts may still seem paltry to many providers and suppliers. According to the OIG, providers who identify patients that need items worth more than these limits should establish relationships with charitable organizations that can provide items and/or services that are not subject to these limits. In other words, work together to meet the needs of patients!