AI Scribe

by Elizabeth E. Hogue, Esq. | Jul 24, 2026 | Artificial Intelligence, Clinical, New Tech

by Elizabeth E. Hogue, Esq.

Ai Scribes Enticing

But...

Use of AI (artificial intelligence) scribes or generative AI is very enticing to many clinicians. The “scribe” listens in the background to the interchange between clinicians and patients and then produces comprehensive documentation in a matter of minutes.

No more staring at a computer screen and punching away at keyboards while talking with patients!

No more struggling to complete documentation on a timely basis after visits with patients!

The use of this technology is spreading rapidly. In fact, it may be the fastest-adopted medical technology of all time!

From clinicians’ point of view, what could go wrong?

Clinicians are discovering, however, that writing clinical notes is a vital step to arrive at an accurate diagnoses and/or appropriate plans of care.

Here is what Helen Ouyang says in The New York Times Magazine, July 12, 2026:

“For a while, after I started using the scribe, my role in creating the …note seemed simple: read the draft, correct what was wrong, sign it. So fast, so easy.”

But then...

“…the process began to discomfit me, as a I slowly realized that editing a note I did not create does not demand the same of me as writing a note. I was no longer thinking through the interaction with a patient and the meaning of the information I had gathered from the visit…

This distinction seemed small at first. Over time, though, I have come to see how much of my own thinking had been bound up in the writing process itself.”

Ms. Ouyang goes on to say:

“The process of note-writing helps me formulate decision-making and then check whether it really holds up. If I find myself trying too hard to explain away a patients’ symptoms, trying to hard to dismiss a worrisome vital sign, trying too hard to fit an abnormal result into a reassuring narrative, then maybe I need to revise my conclusions….”

Unsettling changes

According to Ms. Ouyang, there’s something else, too. What also unsettles her is that the interaction no longer feels quite like what healthcare, at its heart, is supposed to be i.e. an intimate exchange between two humans. The sick room should be able to hold fear, shame and guilt, to shelter things people say in the depths of illness.

“But when every word is being recorded, no matter that the recording stays confined to a machine something feels diminished. There is, or ought to be, something close to sacred in such moments.”

Helen Ouyang, MD MPH

Emergency Medicine, Columbia University Irving Medical Center

Final Thoughts

The provision of care also depends on exchanges between clinicians. Documentation generated by AI makes it more difficult to tell what colleagues really think.

And clinicians should always bear in mind that AI is not foolproof. AI may, for example, introduce new diagnoses, for example.

Like many other things, AI may prove to be a mixed bag rather than the answer to the never-ending story of complete, accurate timely documentation.

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Elizabeth E. Hogue, Esq The Rowan Report

Elizabeth Hogue is an attorney in private practice with extensive experience in health care. She represents clients across the U.S., including professional associations, managed care providers, hospitals, long-term care facilities, home health agencies, durable medical equipment companies, and hospices.

©2026 Elizabeth E. Hogue, Esq. All rights reserved.
No portion of this material may be reproduced in any form without the advance written permission of the author.

Stark Law

by Elizabeth E. Hogue, Esq. | Jun 19, 2026 | Legal

by Elizabeth E. Hogue, Esq

Stark Law

History

The Stark law is more than 30 years old! It was enacted in 1989 and took effect on January 1, 1992. As many providers already know, the so-called “Stark law” prohibits physicians from making referrals to providers who render “designated health services” (DHS) if referring physicians have an ownership or investment interest in or compensation arrangement with the provider.

What's Included

Designated health services generally include home health, home medical equipment (HME), infusion services, and outpatient hospital services. Hospices, however, are not DHS. Likewise, providers of DHS generally cannot bill for services provided to patients referred by physicians who have ownership or investment interests in or compensation arrangements with them that violate the Stark law.

Enforcement

Enforcement is currently extremely aggressive. In 2024, there were 979 qui tam or whistleblower lawsuits with settlements and judgments amounting to a record-breaking $2.92 billion. In the same year, CMS resolved 314 Stark law self-disclosure settlements totaling more than $24.7 million, which is almost twice the previous annual record. An additional 232 disclosures were withdrawn, closed without settlement, or closed without settlement by law enforcement partners of CMS.

Bumper Crop

Here are some possible reasons for this “bumper crop:”

Whistleblowers are more knowledgeable and sophisticated
The U.S. Department of Justice is more willing to litigate cases
Court decisions provide new guidance about physician compensation, referral arrangements, and ownership.

Recent Illustrations

Five recent cases illustrate these trends:

Community Health Network paid a total of $480 million to settle violations related to the Stark law. This settlement was based on a complaint by a whistleblower filed by the former CFO and COO. They complained that doctors were paid more than fair market value (FMV) and received bonuses that were tied to the number of referrals. This case shows that if compensation arrangements are structured based on the volume of referrals, they likely violate the Stark law even if consultants claim that compensation is at fair market value.
Covenant HealthCare and two physicians paid a combined $69 million to settle civil suits based on contracts that did not meet requirements of any exception to the Stark law. Providers who use medical directors were reminded by this case that physicians who make referrals must be paid at FMV.St. Francis Health paid $36.5 million because it allegedly made payments to physician specialists tied to the volume or value of referrals.
Massachusetts Eye and Ear paid more than $5.7 million based on compensation paid to physicians that violated the Stark law. Physicians were paid a percentage of operating margins from facility fees. These fees were, in turn, distributed as bonuses to employed physicians based on services performed and hours worked. Returning revenue back to physicians through bonus structures even if treated as compensation based on productivity is clearly a “non-starter.”
Erlanger Health System is currently defending itself in two lawsuits that claim it compensated employed physicians in violation of Stark. In response to these suits, Erlanger says that physician compensation is based on FMV as determined by outside consultants, but cases described above call this conclusion into question.

Final Thoughts

Many trade associations and providers have called for changes to the Stark law or even doing away with it altogether. As the above cases demonstrate, however, Stark is alive and well!

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©2026 Elizabeth E. Hogue, Esq. All rights reserved.
No portion of this material may be reproduced in any form without the advance written permission of the author.

Fraud in Hospice

by Elizabeth E. Hogue, Esq. | May 29, 2026 | Hospice, Waste Fraud and Abuse

By Elizabeth E. Hogue, Esq.

Fraud in Hospice Today

Between a Rock and a Hard Place

The crackdown on fraud in the hospice industry has begun and will undoubtedly continue for some time. Many believe that this crackdown is way overdue. Efforts to eliminate fraud are likely to negatively impact the hospice industry; causing significant damage or even destruction of its credibility. The result may be that patients are no longer willing to receive hospice care. These negative effects could spill over to other types of services provided in patients’ homes, such as home health services.

Examples of Fraud in Hospice

Placed in Hospice Care Without Knowledge

A former Louisiana resident was sentenced to 6 years in prison for conspiracy to commit health care fraud and 3 counts of health care fraud. Evidence presented at trial demonstrated that 24 patients were admitted to the hospice who had not been diagnosed with a terminal condition. Many of the patients and their families never knew they had been placed in hospice care. A patient testified at trial that Medicare refused to cover a procedure he needed because, without his knowledge, he was a patient of a hospice.

Fake Charts

A defendant in California told prospective patients that they did not have to be dying to receive hospice services. After collecting identifying information from prospective patients who were not terminally ill, the hospice billed the Medicare Program for services provided to the patients. When the Medicare Program requested additional information to support claims submitted, the owners directed employees to create fake patient charts that were submitted to Medicare.

Make the Patient go "Bye-Bye"

A Texas hospice owner sent employees a text that said, “You need to make this patient go bye-bye.” Giving the owner every benefit of the doubt and allowing for misunderstandings that may arise from text messages, it seems impossible to justify this communication.

Another owner of a hospice in Texas sent a text message to a hospice nurse telling her to take over for nurses who weren’t doing their jobs. The owner went on to say: “I told this chick that if she would just give her 1 ml of Ativan and turn her she would die,” and “[expletive] woman is still alive…I need boots on the ground.” After the nurse took over the care of the patient, as instructed, the owner then texted “nice work.”

Hospice Without a Terminal Illness

A physician was the medical director of several hospice companies. He fraudulently certified that patients of these hospices had terminal illnesses when they did not. In 2015, the physician was listed as the attending physician for more hospice claims paid by the Medicare Program than any other doctor in the country.

Kickbacks

The medical director of another hospice with dozens of locations certified unqualified patients for hospice care. In addition to payment for his services as medical director, he received other perks, including luxury trips and bottle service at exclusive nightclubs.

Final Thoughts

The need for enforcement action is clear, but what effect will these efforts have on the general public and the public’s willingness to use hospice and other services? The backlash from learning that providers who are supposed to care for patients and their families in their dying moments actually engaged in fraudulent conduct may be horrendous – even catastrophic – in terms of utilization of hospice services. Even compliant hospices and other types of providers may feel severe adverse effects. So sad for everyone.

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©2026 Elizabeth E. Hogue, Esq. All rights reserved.
No portion of this material may be reproduced in any form without the advance written permission of the author.

Private Payors Against Fraud

by Elizabeth E. Hogue, Esq. | Apr 17, 2026 | Admin, CMS, Home Health, Hospice, Medicaid, Medicare, Regulatory, Waste Fraud and Abuse

by Elizabeth E. Hogue, Esq.

Private Payors Against Fraud

Join Enforcement Efforts

There seems to be a persistent myth among providers of private duty/homecare services that the federal anti-kickback statute applies to Medicare-certified providers only. On the contrary, the anti-kickback statute applies to providers who receive funds from any state or federal healthcare program; including the Medicaid Program, VA, TRICARE, etc. Private duty providers: This means many of you! Lately it has become clear that private payors have joined fraud enforcement efforts.

Guilty

In a recent case, a provider in Detroit pled guilty to conspiring to commit health care fraud. The conspiracy resulted in losses totaling $1.9 million to Medicare, Medicaid, and Blue Cross Blue Shield of Michigan. The investigation was conducted by the FBI and the Office of Inspector General of the U.S. Department of Health and Human Services, the primary enforcer of fraud and abuse prohibitions.

Ghost Services

At the plea hearing, the provider admitted to creating and operating a scheme to submit false and fraudulent claims that were medically unnecessary or not actually provided. In some instances, services billed were not ordered by physicians. The scheme continued for over five years. The provider used the proceeds of fraud for his personal use and to benefit others.

Consequences

After a presentence report is prepared, the provider faces a possible maximum sentence of ten years in prison, a fine of up to $250,000 and up to three years of supervised release following any term of imprisonment.

Federal and Private Prosecution

It is important to note that the provider was criminally prosecuted not only for fraud with regard to claims submitted to Medicare and Medicaid Programs, but also fraud committed against a private payor, Blue Cross Blue Shield.

Your Payor Could Report You

It now appears that providers who receive payments from third party payors must be concerned about fraud enforcement. Consequently, providers of private duty/home care services must develop, implement, and update Compliance Programs.

Compliance Programs

Compliance Programs are specific types of documents that routinely address issues that providers do not usually cover in internal policies and procedures. In addition, providers may not gain benefits related to fraud enforcement if there is no formal document called a Compliance Program.

More than Accreditation

Some providers think that accreditation means they are in compliance. On the contrary, providers may be accredited but fail to meet applicable compliance standards for fraud and abuse. Compliance Programs appropriately address potential fraud and abuse issues. They also include mechanisms for helping to ensure compliance, such as processes for identification and correction of potential problems that are not addressed during the certification process.

It Could Save You

Providers also need to know that developing, implementing, and updating Compliance Programs may make a considerable difference during fraud enforcement actions. If providers have Compliance Programs in place that are current and fully implemented, enforcers may be less aggressive in pursuing potential violations.

Corporate Integrity Agreement

When enforcers discover problems with fraud and abuse in organizations, providers are usually asked to develop and implement a Corporate Integrity Agreement (CIA). This type of agreement is likely to include processes for stringent monitoring on a continuous basis. These monitoring activities can be extremely burdensome to providers in terms of both time and money. Providers with valid Compliance Programs are not necessarily asked to develop and implement CIA’s.

Final Thoughts

Now is the time for all providers, including private duty/home care companies, to recognize and act upon the need to establish and maintain Compliance Programs. “Working on it” is no longer good enough.

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©2026 Elizabeth E. Hogue, Esq. All rights reserved.
No portion of this material may be reproduced in any form without the advance written permission of the author.

Fraud and Abuse Misunderstandings

by Elizabeth E. Hogue, Esq. | Apr 3, 2026 | Clinical, Legal, Regulatory, Waste Fraud and Abuse

by Elizabeth E. Hogue, Esq.

Medicare and Medicaid Fraud and Abuse

Common Misunderstandings

Providers are generally familiar with prohibitions against fraud and abuse in the Medicare and Medicaid Programs, including Medicaid waiver programs, and other state and federal health care programs, such as the VA and TriCare. Private insurers now often enforce the same prohibitions applicable to federal and state programs. But there are at least two common misconceptions about fraud and abuse.

Intent

Enforcers must prove intent in order to show that providers engaged in fraud, but providers may not understand what the government can use to show “intent.”

Premeditation

Many providers seem to think that the only way to show intent is to prove that they sat down at their desks on a Monday morning and decided to commit fraud, but court decisions tell a very different story! They say that if enforcers can prove that providers knew or should have known of a pattern of fraudulent conduct, enforcers may conclude that providers had intent. Other court decisions say that when providers show reckless disregard for a pattern of fraudulent conduct regulators can show intent necessary to prove fraud.

When providers grasp these crucial standards, it is clear that they must become vigilant to prevent patterns of fraud and abuse. This is necessary in order to prevent government enforcers from concluding that they had intent necessary to prove fraud and/or abuse.

Personal Responsibility

Many providers also may not understand that every provider, regardless of position, is personally responsible for fraud and abuse compliance.

It Rests on You

It is extremely tempting to think that fraud and abuse compliance is management’s responsibility, or the exclusive job of the Administrator/Chief Executive Officer or the organization’s Compliance Officer. On the contrary, the Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services, the primary enforcer of fraud and abuse prohibitions, is quite clear that every practitioner has personal, individual responsibility for fraud and abuse compliance.

The problem of fraud and abuse will never be solved until every practitioner takes individual responsibility for it. Enforcement action is often taken against individual practitioners, as well as members of management and owners.

Complete Compliance

When providers understand these two basic points, they are well along the road to active participation in fraud and abuse compliance efforts.

Final Thoughts

Providers must remember that fraud and abuse compliance is now a permanent part of the health care landscape across the nation. Compliance is not a fad that will blow over or disappear! Providers must be prepared to actively work to prevent or correct fraud and abuse for as long as they work in the healthcare industry.

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©2026 Elizabeth E. Hogue, Esq. All rights reserved.
No portion of this material may be reproduced in any form without the advance written permission of the author.

Fraud and Abuse Compliance

by Elizabeth E. Hogue, Esq. | Dec 18, 2025 | Admin, Home Health, Hospice, Legal, Waste Fraud and Abuse

by Elizabeth E. Hogue, Esq.

Fraud and Abuse Compliance

Why All Providers Should Have One

Providers may have heard or read about the importance of Fraud and Abuse Compliance Programs in their organizations. Despite the wealth of available information about Compliance Programs, many providers continue to express uncertainty about their value.

Coincidentally, as we are preparing to publish this article, HHS publishes this report on the compliance audit of Guardian Home Care, LLC.

Here are some of the questions providers often ask about Compliance Programs:

Why should we have a Fraud and Abuse Compliance Program?

First

The Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) has clearly stated that all providers are now required to have current Compliance Programs that are fully implemented.

As a practical matter, when providers establish and maintain Compliance Programs, it clearly discourages regulators from pursuing allegations of fraud and abuse violations. Jody Hunt, formerly of the DOJ, says providers should create robust fraud and abuse compliance programs. Then providers can argue that they shouldn’t be liable for violations because their compliance programs demonstrate that they had no intent to commit fraud.

Technically speaking, the Federal Sentencing Guidelines make it clear that establishment and implementation of Compliance Programs is considered to be a mitigating factor. That is, if accusations of criminal conduct are made, the consequences may be substantially less severe as a result of a fully implemented Compliance Program.

Additionally

Providers with Compliance Programs are more likely to avoid fraud and abuse. This is because Programs routinely establish an obligation on the part of every employee to report possible instances of fraud and abuse and include training for all employees.

Compliance Programs may also help to prevent qui tam or so-called “whistleblower” lawsuits by private individuals, rather than by government enforcers, who believe that they have identified instances of fraud and abuse. There are significant incentives to bring these legal actions since “whistleblowers” receive a share of monies recovered as a result of their efforts. Some “whistleblowers” have received millions of dollars. Compliance Programs make it clear that employees have an obligation to bring any potential fraud and abuse issues to the attention of their employers first.

Also…

The federal Affordable Care Act (ACA) requires providers to have Compliance Programs. In short, it’s the law!

Finally

The Deficit Reduction Act (DRA) requires providers who receive more than $5 million in monies from state Medicaid Programs per year to implement policies and procedures, provide education to employees and put information in their employee handbooks about fraud and abuse compliance. These requirements can be met through implementation of Fraud and Abuse Compliance Programs.

We don't receive reimbursement from the Medicare or Medicaid Programs.

Do we still need a Compliance Program?

Statutes and regulations governing fraud and abuse also apply to providers who receive payments from any federal and state healthcare programs, including Medicaid, Medicaid waiver and other federal and state health care programs, such as Tri-Care. Many private insurers have followed the federal government’s “lead” in terms of fraud and abuse enforcement. So private duty providers must have compliance programs, too.

Should we just use the model guidance that is applicable to us?

We hear that the OIG has provided guidance for various segments of the healthcare industry regarding Compliance Programs. Specifically, the OIG has already published guidance for clinical laboratories, hospitals, home health agencies, skilled nursing facilities (SMFs), hospices, physicians’ practices, third-party billing companies and home medical equipment companies. The OIG will publish updated guidance for all providers, It has already done so for SNFs.

The answer is “No!” Guidance from the OIG is not a model Compliance Program. Guidance from the OIG consists of general guidelines and does not constitute a valid Compliance Program. In addition, the OIG has made it clear that Programs must be customized for each organization.

Do we have to conduct internal audits first?

We have read that, before implementing Compliance Programs, providers must conduct expensive internal audits that can take many months to complete. Is this true?

While beginning the compliance process with an extensive internal audit is certainly one way to proceed, it is not the only viable way to work toward compliance. It is equally valid to begin with Compliance Programs that are customized for the organization that includes training for all employees about fraud and abuse and Compliance Programs. Then all staff members can subsequently participate in internal compliance activities, including audits, with a process in place to handle any issues that arise as a result of the audits.

We already have policies. Why do we need a Compliance Program too?

Compliance Programs are specific types of documents that routinely address issues that providers do not usually cover in internal policies and procedures. In addition, providers may not gain benefits under the Federal Sentencing Guidelines described in the first question above if there is no formal document called a Compliance Program.

We're accredited. Doesn't that mean we are in compliance?

On the contrary, Compliance Programs appropriately address potential fraud and abuse issues. They also include mechanisms for helping to ensure compliance such as processes for identification and correction of potential problems that are not addressed during the certification process. In other words, organizations may be accredited but fail to meet applicable compliance standards for fraud and abuse.

Will it help with investigations?

Will the fact that our organization has a Compliance Program make any difference with regard to the outcome of fraud and abuse investigations and the imposition of Corporate Integrity Agreements (CIA’s)?

Yes, it may make a considerable difference based on statements from the OIG. If providers have Compliance Programs in place that are current and fully implemented, the OIG may be less aggressive in pursuing potential violations. When the OIG actually discovers problems with fraud and abuse in organizations, providers are usually asked to develop and implement a Corporate Integrity Agreement (CIA). The OIG often requires CIA’s to include a process for stringent monitoring by the OIG on a continuous basis. These monitoring activities can be extremely burdensome to providers in terms of both time and money. Providers with valid Compliance Programs are not necessarily asked to develop and implement CIA’s.

Final Thoughts

Now is the time for all providers to recognize and act upon the need to establish and maintain Compliance Programs. “Working on it” is no longer good enough.

No portion of this material may be reproduced in any form without the advance written permission of the author.

What can Providers Give to Patients, Part 7

by Elizabeth E. Hogue, Esq. | Dec 12, 2025 | Admin, Clinical, Legal

by Elizabeth E. Hogue, Esq.

What Providers can Give to Patients

Providers, including marketers, are tempted to give patients and potential patients free items and services. While providers usually have good intentions, they must comply with applicable requirements.

Read Parts 1-6

OIG Advisory Opinion

This article provides an example from OIG Advisory Opinion No. 09-11 that shows how the OIG applies exceptions described in this series of articles.

A Case Example

The request for this Advisory Opinion was submitted by a hospital that provides free blood pressure checks to anyone who requests the service during certain hours. The hospital said that it does not advertise free blood pressure checks, which are provided by a member of the nursing staff who follows specific guidelines and procedural checklists.

The hospital also said that free blood pressure checks are not conditioned on use of any other goods or services from the hospital or any other particular provider. No discounts are offered for follow-up services. Recipients of blood pressure checks are advised to see their own practitioners when results are abnormal. The hospital does not bill any payor, including the Medicare and Medicaid Programs, for this service.

OIG Analysis

In its analysis, the OIG first referenced the exception for preventive services described in Part 5 of this series.

The OIG then pointed out that the fair market value of this service, especially if recipients use the service more than once, may exceed the limits of $15 per service or $75 per year described in Part 2 of this series. Therefore, said the OIG, the services may constitute a kickback.

According to the OIG, blood pressure checks are preventive services. The key question, however, is whether the free care promotes the provision of other, non-preventive care reimbursed by the Medicare and/or Medicaid Programs.

Is It Promotional?

In this case, the OIG said that it is unlikely that free blood pressure checks will result in the provision of other services. The factual basis for this conclusion in the Advisory Opinion was that the hospital did not:

Make appointments with its practitioners for individuals with abnormal results
Offer individuals discounts for additional covered services
Otherwise promote its particular programs

Crafted with Care

“In sum,” said the OIG, “the Arrangement is appropriately crafted so as to avoid improper ties to the provision of other services…For these same reasons, we conclude that we would not impose administrative sanctions arising in connection with either the anti-kickback statute or the CMP on the Hospital in connection with the Arrangement.”

Final Thoughts

The 7 parts of this series describe and summarize the laws and exceptions to providing incentives, gifts, and help to patients in accordance with the Anti-Kickback Statute and the Civil Monetary Penalties Law. As long as you are following these regulations, providers should certainly use all of the exceptions available to them to provide better quality of care for patients.

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No portion of this material may be reproduced in any form without the advance written permission of the author.

What can Providers Give to Patients, Part 6

by Elizabeth E. Hogue, Esq. | Dec 4, 2025 | Legal

by Elizabeth E. Hogue, Esq.

What Providers Can Give, Part 6

Provider Kickback Exclusions

Background

Part 1

As Part 1 of this series indicates, there are two applicable federal statutes: the Anti-Kickback Statute (AKS) and the Civil Monetary Penalties Law (CMPL). Part 1 also makes it clear that there are a number of exceptions. If providers meet the requirements of applicable exceptions, they can give patients and potential patients free items and services that would otherwise violate applicable requirements.

Part 2

Part 2 describes an exception for items and services of nominal value with a retail value of no more than $15 per item or $75 in the aggregate per patient on an annual basis that may be given by providers to beneficiaries. Providers may not, however, give cash or cash equivalents.

Part 3

Part 3 describes the circumstances under which providers may give free items and services to patients with demonstrated financial need.

Part 4

Part 4 summarizes recent guidance from the Office of Inspector General (OIG) about giving incentives to promote vaccination against COVID-19.

Part 5

Part 5 describes an exception for preventive items or services.

Part 6: An exception

This article addresses an exception for free items or services to promote access to care.

The CMPL excludes items or services that improve beneficiaries’ ability to obtain items and services payable by the Medicare or Medicaid Programs and that pose a low risk of harm to both beneficiaries and the Programs because they are unlikely to:

Increase costs to federal health programs or beneficiaries through overutilization or inappropriate utilization
Interfere with or skew clinical decision-making
Raise issues of patient safety or concerns about quality of care

Exclusions

This exception does not apply to waivers of copayments, or to the provision of cash or cash equivalents.

In addition, the exception applies only to items or services that promote access to care covered by the Medicare or Medicaid Programs, i.e., items or services that improve particular beneficiaries’ ability to obtain items or services payable by the Medicare or Medicaid Programs. The exception does not apply to items or services that reward receipt of care or incentives for complying with treatment regimens.

Inclusions

The OIG says, for example, that this exception includes giving patients the tools they need to remove socioeconomic, educational, geographic, mobility, or other barriers to getting necessary care. Such barriers may include free childcare, so that patients may attend educational programs or appointments for treatment; free local transportation or parking reimbursement for appointments; smartphone apps or low-cost fitness trackers; gift cards that promote access to care; educational materials and informational programs about disease states or treatments; and self-monitoring equipment, such as scales or blood pressure cuffs. The exception does not include movie tickets, for example, given to patients to reward them for attending educational sessions.

Final Thoughts

Providers should certainly utilize the exceptions described in this series of articles to provide the maximum permissible assistance to patients.

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No portion of this material may be reproduced in any form without the advance written permission of the author.

What Can Providers Give to Patients, Part 5

by Elizabeth E. Hogue, Esq. | Nov 25, 2025 | Admin, Clinical, Legal

by Elizabeth E. Hogue, Esq.

What Can Providers Give...

Recap

Part 1

Part 2

Part 3

Part 3 describes the circumstances under which providers may give free items and services to patients with demonstrated financial need.

Part 4

Part 4 summarizes recent guidance from the Office of Inspector General (OIG) about giving incentives to promote vaccination against COVID-19.

Care & Services

According to the OIG, providers may also give patients free preventive care items or services. The definition of remuneration under the CMPL regulations excludes incentives given to patients/potential patients to promote the delivery of preventive care services so long as the delivery of such services is not directly or indirectly related to the provision of other services reimbursed in whole or in part by the Medicare Program or other state and federal healthcare programs. Preventive services include:

Prenatal services or postnatal well-baby visits, or specific clinical services described in the current U.S. Preventive Services Task Force’s Guide to Clinical Preventive Services
Services that are reimbursable in whole or in part by the Medicare Program, or other federal and state care programs

Incentives

However, incentives related to preventive services may not include:

Cash or instruments convertible to cash
Incentives of value that are disproportionally large in relationship to the value of the preventive care services in terms of either the value of the services or the future health care costs reasonably expected to be avoided as a result of preventive care

Preventive

Any tie between provision of exempt covered preventive care services and covered services that are not preventive may, therefore, violate the CMPL and the AKS.

The OIG has stated that some free or discounted services may fit within the preventive care exception described above. These services may include free blood sugar screenings and cholesterol tests.

Anti-Kickback Exceptions

The AKS does not include an exception similar to the provisions of the CMPL described above. In commentary to Supplemental Compliance Guidance for Hospitals, however, the OIG said:

From an anti-kickback perspective, the chief concern is whether an arrangement to induce patients to obtain preventive care services is intended to induce other business payable by a Federal health program. Relevant factors in making this evaluation would include, but not be limited to: the nature and scope of the preventive care services; whether the preventive care services are tied direct or indirectly to the provision of other items or services and, if so, the nature and scope of the other services; the basis on which patients are selected to receive the free or discounted services; and whether the patient is able to afford the services.

Final Thoughts

Based upon the above, the OIG is unlikely to challenge the provision of free preventive services given to patients and potential patients, under either the CMPL or the AKS, so long as the above requirements are met.

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No portion of this material may be reproduced in any form without the advance written permission of the author.

What Can Providers Give to Patients, Part 4

by Elizabeth E. Hogue, Esq. | Nov 13, 2025 | Legal

by Elizabeth E. Hogue, Esq.

What Can Providers Give to Patients...

...and COVID-19

On May 24, 2021, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) issued another FAQ on the Application of Administrative Enforcement Authorities to Arrangements Directly Connected to the Coronavirus Disease:

Would the offer or provision of cash, cash-equivalent, or in-kind incentives or rewards to Federal health care program beneficiaries who receive COVID-19 vaccinations during the public health emergency violate the OIG’s administrative enforcement authorities?

Covid Vaccine Incentives

The OIG first addressed this question by acknowledging that a broad range of entities, including providers, are offering a wide variety of incentives and rewards to recipients who are vaccinated; such as food and beverages, cash, and tickets to concerts and sporting events. The OIG recognizes that widespread vaccine administration is crucial to the pandemic response and that incentives and rewards may promote broader access and increase the number of recipients.

A question of legality

The OIG also pointed out, however, that these rewards and incentives may violate the federal Anti-Kickback Statute (AKS) and the Civil Monetary Penalties Law (CMPL) governing beneficiary inducements.

An Exception to the Rule

The OIG then concluded that providers, in the limited context of the COVID-19 public health emergency, may give rewards or incentives to beneficiaries who receive either one or both doses of the vaccine because such incentives and rewards “would be sufficiently low risk under the Federal anti-kickback statute and Beneficiary Inducements CMP.”

With Limitations

Providers must, however, meet the following requirements:

The incentive or reward must be furnished in connection with receipt of a required dose of COVID-19 vaccine, including either one or two doses depending on vaccine type.

The vaccine administered is authorized or approved by the Food and Drug Administration (FDA) as a vaccine for COVID-19 and is administered in compliance with all other applicable federal and state rules and regulations, including conditions for receipt of vaccine supplies from the federal government by providers.

Incentives or rewards are not tied to or contingent upon any other arrangement or agreement offering incentives or rewards between providers and beneficiaries.

Incentives or rewards are not conditioned on recipients’ past or anticipated future use of other items or services that are reimbursable in whole or in part by federal health care programs.

Incentives or rewards are provided during the COVID-19 public health emergency.

Does Not Apply

The OIG then pointed out that the AKS and CMPL relate to items and services for which payment may be made in whole or in part under a Federal health program. According to the OIG, it is unlikely that these statutes are implicated by incentive and rewards furnished to commercially insured or uninsured individuals.

Not Specific to Covid

Finally, the OIG concluded by saying that it would not express any opinion on the merits or utility of particular incentives or rewards to address the goal of encouraging vaccination.

As long as the criteria above are met, providers may give incentives or rewards to beneficiaries in order to encourage them to be vaccinated.

This article is part 4 in the series. Read Part 1, Part 2, and Part 3.

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Ai Scribes Enticing

But...

From clinicians’ point of view, what could go wrong?

But then...

Ms. Ouyang goes on to say:

Unsettling changes

Final Thoughts

Stark Law

History

What's Included

Enforcement

Bumper Crop

Recent Illustrations

Final Thoughts

Fraud in Hospice Today

Between a Rock and a Hard Place

Examples of Fraud in Hospice

Placed in Hospice Care Without Knowledge

Fake Charts

Make the Patient go "Bye-Bye"

Hospice Without a Terminal Illness

Kickbacks

Final Thoughts

Private Payors Against Fraud

Join Enforcement Efforts

Guilty

Ghost Services

Consequences

Federal and Private Prosecution

Your Payor Could Report You

Compliance Programs

More than Accreditation

It Could Save You

Corporate Integrity Agreement

Final Thoughts

Medicare and Medicaid Fraud and Abuse

Common Misunderstandings

Intent

Premeditation

Personal Responsibility

It Rests on You

Complete Compliance

Final Thoughts

Fraud and Abuse Compliance

Why All Providers Should Have One

Why should we have a Fraud and Abuse Compliance Program?

First

Next

Additionally

Also…

Finally

We don't receive reimbursement from the Medicare or Medicaid Programs.

Do we still need a Compliance Program?

Should we just use the model guidance that is applicable to us?

Do we have to conduct internal audits first?

We already have policies. Why do we need a Compliance Program too?

We're accredited. Doesn't that mean we are in compliance?

Will it help with investigations?

Final Thoughts

What Providers can Give to Patients

OIG Advisory Opinion

A Case Example

OIG Analysis

Is It Promotional?

Crafted with Care

Final Thoughts

What Providers Can Give, Part 6

Provider Kickback Exclusions

Background

Part 1

Part 2

Part 3

Part 4

Part 5

Part 6: An exception

Exclusions

Inclusions

Final Thoughts

What Can Providers Give...

Recap