Practice Management Alert

Establish and review policies, and make sure staff understand their responsibilities.

The old saying goes: “’Tis better to give than to receive.” However, in healthcare, there are rules and regulations to follow for both giving and receiving gifts. With the holiday season upon us, it’s a great time to pause, review, and apply the necessary updates to your gifting policies.

Why? Completing an internal review now may help prevent the gifts you give (or receive) from appearing inappropriate or, even worse, becoming a potential fraud and abuse violation. To save you and your gift recipients or senders from potential harm, ensure you have a well-defined gift policy that is understood by everyone.

“Well-intentioned gifts between referral sources may have unintended consequences,” warns attorney Kim Stanger with Holland & Hart in Boise, Idaho. “Healthcare professionals should ensure that they and their staff comply with the rules,” Stanger urges in online analysis.

What’s A Gift Policy?

A gift policy often lives within the company ethics or code of conduct (COC). Most COC guidance explains a gifting policy as a clear, carefully thought-out document that addresses gift-giving and receipt, in which it is made clear that gifts intended to encourage preferential treatment are unacceptable and must be rejected.

If you have a gift policy, great! Review it, make sure it’s up to date, and ensure staff fully understand it.

Be aware: The Department of Health and Human Services (HHS) Office of Inspector General’s (OIG’s) Toolkit for Measuring Compliance Programs identifies one element it uses to measure a compliance program’s effectiveness as verification of the maintenance of a gifts and gratuities policy. Go to https://oig.hhs.gov/compliance/compliance-toolkits for more details.

If you are unaware of such a policy or know you don’t have one, it’s time to get to work.

Pocket These Gift Policy Specifics

Maintaining a detailed gift policy helps ensure compliance and avoid any appearance of impropriety.

To start, a strong policy will address what types of gifts are typically permitted and which are definitely not allowed. Permitted gifts may include a modest gift of food and refreshments, a small fruit or flower basket, or branded promotional items of minimal value such as pens, notepads or mugs, for example.

For prohibited gifts, think cash or cash equivalent items, lavish or high value items, or overly personal items like jewelry and clothing, compliance experts suggest.

Your agency’s policy should also address who may accept a gift and under what circumstances and what disciplinary action against staff you will take for violations.

Your policy should cover in detail gifts received from and given to patients, referral sources, other healthcare sources, and vendors.

Your gift policy should also include some specific provisions such as:

1. Definitions of a gift, entertainment, gratuities, favors, etc. Include examples to help employees understand and better comply.

2. The acceptable “nominal” value amount and the maximum monetary value permitted. For example, the OIG defines “nominal value” for beneficiaries as having a retail value of no more than $15 per item or $75 annually.

3. Circumstances in which a gift can be given, who is allowed to give gifts and to whom. This includes gifting between coworkers, superiors, direct reports, contractors, vendors, and other outside individuals/entities.

4. Description of pre-approval requirements and the detailed steps for reporting and recording of gifts given/ received. The OIG is clear that providers must carefully document items, especially for referral sources.

5. Staff policy training and education requirements (e.g., upon initial job acceptance and annually thereafter.)

Why Is This Important?

Besides the potential ethical dilemmas gifts pose, you do not want to unintentionally violate any current laws and regulations. Relevant laws can have possible collateral consequences including violation of the False Claims Act (FCA), the Civil Monetary Penalties Law (CMPL), and the federal healthcare program exclusion provisions.

Laws that directly impact gifting include:

Physician Self-Referral Law (Stark Law). This law prohibits the referring of patients for “designated health services” such as home health, therapy, and other ancillary services that are payable by Medicare or Medicaid from entities with which the provider or an immediate family member has a financial relationship, unless the arrangement fits within a regulatory exception or safe harbor. The Stark Law also stipulates that providers may furnish some non-monetary (i.e., non-cash or cash equivalent) remuneration to physicians. Check that you have not already exceeded current limits at www.cms.gov/Medicare/Fraud-and-Abuse/PhysicianSelfReferral/CPI-U_Updates.

Medicare’s Anti-Kickback Statute (AKS). This criminal law prohibits the knowing and willful payment of remuneration to induce or reward patient referrals or the generation of business involving any item or service payable by the federal healthcare programs (e.g., drugs, supplies, or health care services for Medicare or Medicaid patients). Remuneration includes anything of value and can take many forms besides cash. This statute covers those who offer or pay remuneration, and the recipients who solicit or receive remuneration. A key consideration is the intent of the parties.

The Prescription Drug Marketing Act (PDMA). The PDMA addresses certain prescription drug marketing practices (e.g., the distribution of free samples, the use of coupons redeemable for drugs at no or low cost, and the sale of deeply discounted drugs to hospitals and healthcare entities.) For more details go to www.ecfr.gov/current/title-21/chapter-I/subchapter-C/part-203#subpart-G.