Gift Giving and the Anti Kickback Law

Even though the holiday season is long gone Healthcare Providers need to pay attention to the value of gifts they give or receive to avoid violating the Anti Kickback Laws. Providers may not accept any one gift with a value of more than approximately $30.00 or gifts worth more than $350.00 annually. The Government is concerned that gifts may cause billing for unnecessary services or may affect the referral of patients. Providers as well as their employees must not solicit gifts either. When a gift is given or received it must not be based upon either the volume or value of any referrals. Gifts that are given frequently after referrals or after any specific successful referral are red flags for violations of the law. In fact the Sunshine Act now requires pharmaceutical companies and durable medical equipment companies to report gifts to providers with a value over $25.00.

The fact that CMS may not currently be investigating or bringing enforcement proceedings for violations of the rules related to gift giving should not be interpreted that any one gift will not cause a problem in the future.

Providers must not let their guard down. Do not make the mistake of thinking it is O.K. to go on a fishing charter or accept a gift certificate “just this one time.” Even though the one event may seem inconsequential, when it is combined with other factors it can end up causing you much greater expense and stress than the value of the gift.

12 thoughts on “Gift Giving and the Anti Kickback Law

  1. What are they doing to actually track whether or not someone or the practice itself has received such gift amounts? I agree is should be monitored I just don’t see how someone from the outside would track gift cards. It is like when I worked in high school as grocery bagger and they stated we weren’t allow to get tips but some people would insist you take it.

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  7. Where can I find more information regarding the $30.00 per gift and $350.00 annually amounts discussed above? Is that specifically listed in a statute? Thanks.

    • The Federal Stark Law, prohibits an entity with a financial relationship with another entity from referring patients who receive Medicare/Medicaid to that entity. 42 USC 1395nn. It also prohibits the second entity from submitting a claim to a government payor for reimbursement. Id. The law does provide, however, for certain exceptions. 42 CFR 411.357(k) sets out an exception to the Stark law for non-monetary compensation (i.e. gifts). The language of the law sets out that gifts of up to $300 per year are permissible as long as the following conditions are met:

      (i) The compensation is not determined in any manner that takes into account the volume or value of referrals or other business generated by the referring physician;
      (ii) The compensation may not be solicited by the physician or the physician’s practice (including employees and staff members); and
      (iii) The compensation arrangement does not violate the anti-kickback statute (section 1128B(b) of the Act) or any Federal or State law or regulation governing billing or claims submission.

      The $300 limitation is adjusted annually for inflation. The last time the OIG formally revisited the issue was in 2011, when the limitation was $30/$359. As of 2014, the amount has been adjusted to $32/$385. Inflation rates for each year are available here: http://www.cms.gov/Medicare/Fraud-and-Abuse/PhysicianSelfReferral/CPI-U_Updates.html.

      If a gift in excess of the amount proscribed by law has been accepted, the recipient may come back into compliance with the Stark Law if:

      (i) The value of the excess nonmonetary compensation is no more than 50 percent of the limit; and
      (ii) The physician returns to the entity the excess nonmonetary compensation (or an amount equal to the value of the excess nonmonetary compensation) by the end of the calendar year in which the excess nonmonetary compensation was received or within 180 consecutive calendar days following the date the excess nonmonetary compensation was received by the physician, whichever is earlier.

      Such a return may be used by an entity only once every 3 years with respect to the same referring physician.

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