Table 3.
Common AKS/CMPL Safeguards
| Eligibility for assistance is not tied to business | The Department of Health and Human Services Office of Inspector General (HHS OIG) is wary of arrangements that base eligibility on a person’s past or anticipated use of a provider’s health care services. A major red flag is the conditioning of assistance on a person agreeing to become or to continue as a patient.a |
| Arrangement involves provision of items and/or services vs. cash and cash-equivalents | HHS OIG is more wary of the provision of cash than it is of non-monetary assistance.b The OIG views vouchers for a specific type of support (e.g., a food voucher) as an acceptable approach to structuring an in-kind arrangement.b A general purpose debit card, on the other hand, is not. |
| Arrangement is not advertised | HHS OIG generally prohibits advertising assistance programs because of concerns that it will steer or coerce people towards other, reimbursable services. Although “whether a particular means of communication constitutes an advertisement or solicitation will depend on the facts and circumstances,” c
HHS OIG recognizes that providing basic information relating to available supports does not violate marketing prohibitions.b HHS OIG explains that it is therefore acceptable for a hospital food pantry to post its hours of operation. Additionally, screening patients for a need (e.g., food insecurity) opens the door to informing eligible patients about related supports available to them without advertising the program to the general patient population. |
| Arrangement involves relatively modest assistance | HHS OIG is more wary of the provision of luxury items or services (such as air transportation) than it is more modest forms (such as ground transportation).c |
| Arrangement is supported by written policies and documentation | Important matters to document may include the intent of the program, safeguards built into the program and how they are operationalized, and processes to monitor adherence to program policies. |
a
HHS OIG, Special Advisory Bulletin: Offering Gifts and Other Inducements to Beneficiaries (2002), available at https://oig.hhs.gov/documents/special-advisory-bulletins/886/SABGiftsandInducements.pdf.
b
Medicare and State Health Care Programs: Fraud and Abuse; Revisions to Safe Harbors Under the Anti-Kickback Statute, and Civil Monetary Penalty Rules Regarding Beneficiary Inducement, 85 Fed. Reg. 77684 (Dec. 2, 2020).
c
Medicare and State Health Care Programs: Fraud and Abuse; Revisions to the Safe Harbors Under the Anti-Kickback Statute and Civil Monetary Penalty Rules Regarding Beneficiary Inducements, 81 Fed. Reg. 88368 (Dec. 7, 2016).