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

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.

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.

# # #

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.

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

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.

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.

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.

# # #

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.

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, Pt 3

by Elizabeth E. Hogue, Esq. | Oct 30, 2025 | Legal

by Elizabeth E. Hogue, Esq.

What Can Providers Give to Patients

Part 1 & 2 Recap

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.

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 safe harbors or exceptions, they can give patients and potential patients free items and services that would otherwise violate applicable requirements.

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.

Exceptions to the Rule

The OIG also says that providers may give free items and services to patients with demonstrated financial need. The exception based on financial need does not include cash or cash equivalents. Cash equivalents include checks, gift certificates, and gift cards.

The CMPL says that the following requirements must be met to qualify for this exception:

- - The items or services are not offered as part of any advertisement or solicitation.
  - The offer to give items or services is not tied to the provision of other items or services reimbursed in whole or in part by the Medicare or Medicaid Programs.
  - There is a reasonable connection between the items or services and the medical care of the patient.
  - Providers give items or services after a determination has been made in good faith that patients are in financial need.

The AKS does not include a similar safe harbor or exception, but the OIG has stated that the AKS does not prohibit discounts to uninsured patients who are unable to pay for items and services.

Good faith determinations that patients are in financial need are key. Determinations should be based on policies and procedures that providers consistently apply to make these decisions. Policies and procedures should include requirements to document financial need. Such policies and procedures are often referred to as policies on “charity care.”

Determining Need

Providers have discretion to take a variety of factors into account to determine financial need. Such factors may include:

- - - Patients’ income, assets and expenses
    - Amounts due for services and items provided

Accuracy Matters

Needless to say, providers should avoid inflated income guidelines that result in free items or services given to beneficiaries who are not really in financial need.

Providers may ask patients to provide documentation of their financial status. Decisions about financial need may also be based on other reasonable methods, such as documented interviews with patients and questionnaires.

Policies and procedures that govern free items and services given to patients should also require periodic review of patients’ financial status, since it may change over time. Providers should recheck patients’ needs at reasonable intervals to help ensure that their financial status has not changed significantly.

Final Thoughts

The key to using this exception is undoubtedly consistent application of a policy and procedure to make determinations about financial need. Now is the time to review or develop and implement policies that cover free items and services given to patients.

This is part 3 of a 5-part series. Come back next week for part 4.

# # #

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.

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, Pt 2

by Elizabeth E. Hogue, Esq. | Oct 17, 2025 | Admin, Clinical, Legal

by Elizabeth E. Hogue, Esq.

Provider Kickbacks

Exceptions

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. As Part 1 of this series indicates, there are two applicable federal statutes: the anti-kickback statute and the civil monetary penalties law. Part 1 also makes it clear that there are a number of exceptions or “safe harbors. If providers can meet the requirements of an applicable safe harbor or exception, they can give patients and potential patients free items and services that would otherwise violate applicable requirements.

Limit Increase

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 that; effective on December 7, 2016; the limits on free items and services given to beneficiaries increased. 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.

Undue Influence

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 thousands of dollars in civil money penalties 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 given by providers 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.

Needed Items, not Cash

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, however, give cash or cash equivalents.

These amounts may still seem paltry to many providers. According to the OIG, providers who see that patients 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!

Final Thoughts

With time and the emotional context inherent in home health and hospice, clinicians may want to offer gifts to their clients. Low reimbursement rates and workforce shortage may cause HHAs to consider gifts and incentives as a way to keep clients and get referrals to new ones. If you find yourself in this situation, make sure you’re staying under the legal threshold, and engage 3rd parties to fill larger needs.

This is part 2 of a 4-part series. Come back next week for the third installment.

# # #

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.

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, Pt 1

by Elizabeth E. Hogue, Esq. | Oct 9, 2025 | Admin, Legal, Marketing

by Elizabeth E. Hogue, Esq.

Providers Kickbacks

Keeping it Clean

Providers, including marketers, are tempted to give patients free items and services. But be careful! These activities may violate laws prohibiting providers that participate in state and federal health programs from giving free items and services to patients. Private insurers often impose the same prohibitions. This means that private duty agencies are not exempt from these fraud and abuse prohibitions if they participate in any state healthcare programs, such as Medicaid or Medicaid waiver programs, or accept payments from private insurers.

Provider Prohibitions

The government generally prohibits providers from giving free items and services to patients because it is concerned that such activities may:

Result in overutilization of services
Produce decisions concerning care that are not objective
Increase costs to the Medicare and Medicaid Programs and other state and federal healthcare programs

Consequences of Provider Kickbacks

Providers who violate prohibitions on what may be given to patients face criminal fines, civil money penalties, suspension or exclusion from the Medicare and Medicaid Programs and other state and federal healthcare programs, and jail time.

There are two applicable federal statutes:

The anti-kickback statute (AKS)
The civil monetary penalties law (CMPL)

Exceptions

The federal government says that providers have violated the federal False Claims Statute if referrals are obtained in a way that violates the AKS and providers submit claims for services provided to patients who were referred in violation of the AKS. Providers generally violate the False Claims Statute if they submit claims or cost reports to the government that include untrue information. When providers submit claims, they, according to enforcers, also promise that referrals were not received in ways that are prohibited. If referrals are received inappropriately by violating the anti-kickback statute, for example, then the claims are “false.” Giving free items or services to patients may also violate a federal statute: the civil money penalties law.

Promotions and Marketing

The CMPL prohibits providers from offering to give or actually giving items or services to patients or potential patients that are likely to influence receipt of services from particular providers. This prohibition is especially relevant to marketing activities. It applies to both direct and indirect promotional activities.

State-Specific Laws

Providers must also comply with applicable laws in all of the states in which they do business. State laws vary, of course, from state to state. Many states have anti-kickback statutes that are similar to the federal statute described above. State licensure statutes for physicians, nurses, therapists, social workers, and other types of providers may also include prohibitions on giving free or discounted items or services to patients, especially when they may induce patients to receive potentially unnecessary services.

Final Thoughts

Although providers may have good intentions when they give free items or services to patients and potential patients, before they are acted upon such intentions must be subjected to consideration of the prohibitions described above.

This is part 1 of a two-part series. Look for part 2 next week.

# # #

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.

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

Update on Malpractice Claims

by Elizabeth E. Hogue, Esq. | Sep 18, 2025 | Legal

by Elizabeth E. Hogue, Esq.

Update on Malpractice Claims

New analysis by Claggett, Sykes and Garza Trial Lawyers shows that registered nurses (RNs) and physicians continue to top the list of health professions most likely to be sued for malpractice. A total of 50,555 claims were filed in 2024. Complaints included 12,655 against RNs while 12,299 complaints were filed against physicians. There were 5,851 complaints against licensed practical nurses. There were also 2,889 complaints against nursing paraprofessionals and 1,068 complaints against advanced practice nurses. Registered nurses now have a risk level that is 2.3 times higher than average. The report says that large patient volumes make nurses especially vulnerable.

Claims and Payouts

While the total number of malpractice suits has decreased by almost 20% in ten years, the severity of claims has risen. In 2024, total payouts were $4.93 billion, averaging $433,000 per case, while the cost per claim against home health nurses was previously much lower as described below.

Home care nurses, including those providing hospice and palliative care, were the most vulnerable to professional liability claims of all nursing specialties for the period from 2015 to 2019, according to “Nurse Professional Liability Exposure Claim Report: 4th Edition,” recently issued by Nurses Service Organization and CNA. This is

the first time that nurses in home care topped the list since the reports were first compiled in 2008. According to the report, home care nurses accounted for 20.7% of claims, which represents an increase of 12.4% over the previous number reported in 2015. Adult medical/surgical nurses topped the list in past reports.

Cost

The average total costs incurred per claim against home care nurses, including legal fees and amounts awarded to patients and/or families, was $216,051 over the five-year period of the study. This amount is a little higher than the overall average for claims against nurses.

The average total costs incurred from closed liability lawsuits against all nurses was $210,513, representing a 4% rise since the last report in 2015. This increase is likely based on more expensive legal and expert counsel, and the rising cost of healthcare since payments to patients include costs of medical treatment that led to malpractice suits.

The following may contribute to increases in claims against home health nurses:

Lack of institutional support for home care nurses that is routinely received by nurses in hospitals and other facilities
Growing popularity of home care
Rising acuity of home care patients
Lack of 24-hour oversight of patients
Absence of equipment in patients’ homes that is readily available in institutional settings to help identify patients at high risk for negative outcomes

Strategies that nurses can use to protect themselves from malpractice claims include:

Stay up to date on education and training
Document assessments of patients in a timely and objective manner
Go up the chain of command when concerned about the well-being of patients
Maintain files that demonstrate character; such as letters of recommendation, notes from patients, and performance evaluations

Final Thoughts

And, of course, complete, accurate and contemporaneous documentation may provide the best defense of all.

It is time to keep risk management close to the top of lists of potential problems that need on-going attention.

# # #

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.

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

Imposter Clinicians

by Elizabeth E. Hogue, Esq. | Aug 28, 2025 | Clinical, Legal

by Elizabeth E. Hogue, Esq.

Imposter Clinicians

Although it is relatively rare, there are individuals who impersonate clinicians! Imposters will inevitably slip through the cracks despite concerted efforts by providers.

The First Offense

For example, Thomasina Amponsah recently admitted to posing as a licensed registered nurse at more than forty facilities in Maryland. Beginning in about September 2019 through approximately August 2023 Amponsah used stolen nursing credentials and false educational and professional histories to secure employment at multiple facilities. She was employed primarily at rehab facilities and nursing homes. She earned at least $100,000 in wages with her false credentials.

Amponsah used a Maryland nursing license number issued to another individual, thus making this individual a victim of identity theft. She then presented a copy of the victim’s license to potential employers. Amponsah altered her name on applications to include the victim’s last name. She falsely claimed that she had been a supervisor and that she had a nursing degree from Florida State University.

Adding Injury to Insult

Amponsah also used a second stolen identify to obtain employment. In July 2021 she submitted an online job application to a staffing agency. She used a Florida nursing license that belonged to another victim. Amponsah provided a copy of this victim’s license to the staffing agency along with a fictitious resume. She then worked for at least twenty-one different skilled nursing facilities on behalf of the staffing agency.

Imposter Identity Uncovered

Although several employers learned her true identity and terminated her employment, Amponsah continued to gain employment as a nurse in other facilities. She faces a maximum sentence of five years in federal prison for false statements related to health care matters and a mandatory two-year sentence served consecutively to any other sentence for aggravated identify theft.

A Common Occurrence

Then there is the recent case of a Pennsylvania woman, Shannon Nicole Womack, who posed as a nurse in four different states. She used various false names and paperwork while employed at twenty nursing homes and rehab facilities as a licensed practical nurse, registered nurse, and even nurse supervisor. Womack was charged with endangering the welfare of care, unlawful use of a computer, identity theft, forgery, theft by unlawful taking, and several other crimes.

Inherent Risks of Imposter Clinicians

There are many implications for services provided by imposters. One is, of course, the possibility of injuries to patients. Another is that providers may wonder if they are liable under the False Claims Act for services provided by unlicensed individuals.

Southern Maryland Home Health Services, for example, hired Diane Cannon as a physical therapist (PT) who was unlicensed, even though she claimed to be a fully qualified PT. In order to gain employment, Cannon used the name of an actual licensed PT and provided false references from supposed former employers. In addition, the provider’s hiring agent who interviewed her said that Cannon was familiar with PT terminology and procedures. While Cannon was employed, the provider did not receive any complaints about her that would have put the provider on notice that she was an imposter.

Agency Liability

Consequently, the U.S. District Court for the District of Maryland concluded that providers are only liable for false claims for services provided by imposters if some degree of culpability is attributable to employers other than simply employing an imposter. In other words, providers will probably not have any liability for filing false claims for imposters’ services so long as providers comply with their internal policies and procedures and state and federal requirements, and nothing occurs that puts employers on notice that staff members are imposters.

Final Thoughts

It is quite scary to think about the provision of healthcare services by unlicensed personnel. The consequences could certainly be dire for both patients and providers. However, vigilance by providers usually, but not always, pays off.