OIG gives guidance on free services

By Elizabeth E. Hogue, Esq. Burtonsville, MD

The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services issued another Advisory Opinion recently that provides additional guidance to providers about giving free items to potential patients. Specifically, the OIG responded to a request from home medical equipment (HME) suppliers for guidance on whether it is appropriate to provide an in-home congestive heart failure (CHF) assessment with oximetry testing to patients in their homes.

The suppliers proposed to provide patients diagnosed with CHF with an in-home assessment with oximetry testing at no charge to determine whether patients qualify for oxygen paid for by the Medicare program. The patient also would receive education regarding his/her condition, including tips about how to recognize and self-manage symptoms. In addition, the patient would undergo pulse oximetries in their own homes conducted at rest, with activity, and overnight. The value of this testing is approximately $22. The HME suppliers further pledged that they would not seek reimbursement for any of the above services.

In addition, the services would be publicized through communications by sales and marketing staff directed exclusively to physicians and their staff members. Information about these services would not be communicated to patients directly or included in marketing materials.

Finally, the suppliers said that recipients of these services were free to choose any HME company of their choice. In fact, the suppliers promised to provide each participant with a written freedom of choice disclosure.

The OIG stated that there were several issues:

  • whether the free assessment with oximetry testing constitutes remuneration paid to beneficiaries who receive them;
  • whether the remuneration provided is likely to influence beneficiaries to select the HME dealers as the source of their oxygen or other goods and services reimbursable by the Medicare program;
  • whether the suppliers know or should know that the provision of free services would be likely to influence beneficiaries' selection of the suppliers for oxygen or other supplies paid for by the Medicare program.

The OIG concluded that HME suppliers that provide the above services free of charge may violate the federal anti-kickback statute.

What should providers do in response to the latest OIG Advisory Opinion on the subject of giving services at no charge to beneficiaries? It is absolutely crucial for providers of all types to put policies and procedures in place or to review and, if necessary, revise existing policies and procedures that govern all free services provided to beneficiaries, including the conduct of so-called health screenings. These policies and procedures must be established and implemented to take into account all of the OIG's guidance on this topic.