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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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 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.

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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.

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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.

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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.

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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.