HHS IG Issues Advisory Opinion on Use of a Preferred Hospital Network as Part of Medicare Supplemental Health Insurance
Re: OIG Advisory Opinion No. 18-06
Dear [
We are writing in response to your request for an advisory opinion regarding the use of a "preferred hospital" network as part of
In issuing this opinion, we have relied solely on the facts and information presented to us. We have not undertaken an independent investigation of such information. This opinion is limited to the facts presented. If material facts have not been disclosed or have been misrepresented, this opinion is without force and effect.
Based on the facts certified in your request for an advisory opinion and supplemental submissions, we conclude that, although the Proposed Arrangement could potentially generate prohibited remuneration under the anti-kickback statute if the requisite intent to induce or reward referrals of Federal health care program business were present, the
This opinion may not be relied on by any persons other than [name redacted], the requestor of this opinion, and is further qualified as set out in Part IV below and in 42 C.F.R. Part 1008.
I. FACTUAL BACKGROUND
[
If Requestor's Policyholders were to be admitted to a hospital other than a
Requestor would return a portion of the savings resulting from the Proposed Arrangement directly to any Policyholder who had an inpatient stay at a
Savings realized by Requestor under the Proposed Arrangement would be reflected in Requestor's annual experience exhibits (which reflect loss ratios) filed with the various state insurance departments that regulate the premium rates charged by Medigap insurers. Thus, the savings realized from the Proposed Arrangement would be taken into account when state insurance departments review and approve the rates.
II. LEGAL ANALYSIS
A. Law
The anti-kickback statute makes it a criminal offense to knowingly and willfully offer, pay, solicit, or receive any remuneration to induce or reward referrals of items or services reimbursable by a Federal health care program. See section 1128B(b) of the Act. Where remuneration is paid purposefully to induce or reward referrals of items or services payable by a Federal health care program, the anti-kickback statute is violated. By its terms, the statute ascribes criminal liability to parties on both sides of an impermissible "kickback" transaction. For purposes of the anti-kickback statute, "remuneration" includes the transfer of anything of value, directly or indirectly, overtly or covertly, in cash or in kind.
The statute has been interpreted to cover any arrangement where one purpose of the remuneration was to obtain money for the referral of services or to induce further referrals. See, e.g.,
The
Section 1128A(a)(5) of the Act provides for the imposition of civil monetary penalties against any person who offers or transfers remuneration to a Medicare or State health care program (including Medicaid) beneficiary that the benefactor knows or should know is likely to influence the beneficiary's selection of a particular provider, practitioner, or supplier of any item or service for which payment may be made, in whole or in part, by Medicare or a State health care program (including Medicaid). The OIG also may initiate administrative proceedings to exclude such party from the Federal health care programs. Section 1128A(i)(6) of the Act defines "remuneration" for purposes of section 1128A(a)(5) of the Act as including "transfers of items or services for free or for other than fair market value."
B. Analysis
The Proposed Arrangement is a straightforward agreement by the Network Hospitals to discount the Medicare inpatient deductible for Requestor's Policyholders--an amount for which Requestor otherwise would be liable. The law is clear that prohibited remuneration under the anti-kickback statute may include waivers of Medicare cost-sharing amounts. Likewise, relief of a financial obligation may constitute a prohibited kickback. In addition, Requestor would pass back a portion of its savings, in the form of premium credits, to any Policyholder who has an inpatient stay at a
1. Anti-kickback Statute
The Proposed Arrangement would not qualify for protection under either the safe harbor for waivers of beneficiary coinsurance and deductible amounts or the safe harbor for reduced premium amounts offered by health plans. The safe harbor for waivers of beneficiary coinsurance and deductible amounts would offer no protection to the Proposed Arrangement because that safe harbor specifically excludes such waivers when they are part of an agreement with insurers, such as Requestor, except in certain circumstances that are not applicable here. See 42 C.F.R. Section 1001.952(k)(1)(iii). Similarly, the safe harbor for reduced premium amounts offered by health plans would offer no protection to the Proposed Arrangement. That safe harbor requires health plans to offer the same reduced cost-sharing or premium amounts to all enrollees, see 42 C.F.R. Section 1001.952(l)(1), whereas, under the Proposed Arrangement, premium discounts would be offered only to those Policyholders who choose a
Absent any safe harbor protection, we examine whether the Proposed Arrangement would pose more than a minimal risk of fraud and abuse under the anti-kickback statute. We conclude that the discounts on inpatient deductibles the Network Hospitals would provide to Requestor, and the premium credits Requestor would offer to Policyholders who have inpatient stays at the Network Hospitals, would present a sufficiently low risk of fraud or abuse under the anti-kickback statute for the following reasons.
First, neither the discounts nor the premium credits would increase or affect per-service Medicare payments. With the exception of certain pass-through payments and outlier payments, Part A payments for inpatient services are fixed; they are unaffected by beneficiary cost-sharing.
Second, the Proposed Arrangement would be unlikely to increase utilization. In particular, the discounts effectively would be invisible to Policyholders because they would apply only to the portion of the individual's cost-sharing obligations that his or her supplemental insurance otherwise would cover. In addition, we have long held that the waiver of fees for inpatient services is unlikely to result in significant increases in utilization. See, e.g., Preamble to Final Rule: OIG Anti-Kickback Provisions, 56 Fed. Reg. 35,952, 35,962 (
Third, the Proposed Arrangement should not unfairly affect competition among hospitals because membership in the PHO's hospital network would be open to any accredited, Medicare-certified hospital that meets the requirements of applicable state laws.
Fourth, the Proposed Arrangement would be unlikely to affect professional medical judgment because Policyholders' physicians and surgeons would receive no remuneration, and Policyholders would remain free to go to any hospital without incurring any additional out-of-pocket expense for their inpatient hospital stay.
Fifth, the Proposed Arrangement would operate transparently, as Requestor certified that it would clearly inform Policyholders of their freedom to choose any hospital without incurring additional liability or a penalty.
2. Civil Monetary Penalties Law
The premium credits also would implicate the prohibition on inducements to beneficiaries. Unlike incentives to enroll in an insurance plan, which do not implicate the prohibition, see Final Rule Revising OIG Civil Monetary Penalties, 65 Fed. Reg. 24,000, 24,407 (
The definition of remuneration for purposes of section 1128A(a)(5) of the Act includes an exception for differentials in coinsurance and deductible amounts as part of a benefit plan design, as long as the differentials are properly disclosed to affected parties and meet certain other applicable requirements. See section 1128A(i)(6)(C) of the Act. This exception permits benefit plan designs under which plan enrollees pay different cost-sharing amounts depending on whether, for example, they use network or non-network providers. Although the premium credit would not technically be a differential in a coinsurance or deductible amount, it would have substantially the same purpose and effect as such a differential. We therefore conclude that the premium credit would present a sufficiently low risk of fraud or abuse under the prohibition on inducements to beneficiaries.
The Proposed Arrangement has the potential to lower Medigap costs for Policyholders who select a
Based on the totality of the facts and circumstances, and given the sufficiently low risk of fraud or abuse and the potential savings for beneficiaries, we would not impose administrative sanctions on Requestor under the anti-kickback statute or the prohibition on inducements to beneficiaries in connection with the Proposed Arrangement.
We note, however, that our opinion relates only to the application of the anti-kickback statute and the prohibition on inducements to beneficiaries. We have no authority and do not express any opinion as to whether the Proposed Arrangement would comply with other Federal laws and regulations, including those administered by the
III. CONCLUSION
Based on the facts certified in your request for an advisory opinion and supplemental submissions, we conclude that, although the Proposed Arrangement could potentially generate prohibited remuneration under the anti-kickback statute if the requisite intent to induce or reward referrals of Federal health care program business were present, the OIG would not impose administrative sanctions on [name redacted] under sections 1128(b)(7) or 1128A(a)(7) of the Act (as those sections relate to the commission of acts described in section 1128B(b) of the Act) in connection with the Proposed Arrangement. In addition, the OIG would not impose administrative sanctions on [name redacted] under section 1128A(a)(5) of the Act in connection with the Proposed Arrangement. This opinion is limited to the Proposed Arrangement and, therefore, we express no opinion about any ancillary agreements or arrangements disclosed or referenced in your request for an advisory opinion or supplemental submissions.
IV. LIMITATIONS
The limitations applicable to this opinion include the following:
* This advisory opinion is issued only to [name redacted], the requestor of this opinion. This advisory opinion has no application to, and cannot be relied upon by, any other individual or entity.
* This advisory opinion may not be introduced into evidence by a person or entity other than [name redacted] to prove that the person or entity did not violate the provisions of sections 1128, 1128A, or 1128B of the Act or any other law.
* This advisory opinion is applicable only to the statutory provisions specifically noted above. No opinion is expressed or implied herein with respect to the application of any other Federal, state, or local statute, rule, regulation, ordinance, or other law that may be applicable to the Proposed Arrangement, including, without limitation, the physician self-referral law, section 1877 of the Act (or that provision's application to the Medicaid program at section 1903(s) of the Act).
* This advisory opinion will not bind or obligate any agency other than the
* This advisory opinion is limited in scope to the specific arrangement described in this letter and has no applicability to other arrangements, even those which appear similar in nature or scope.
* No opinion is expressed herein regarding the liability of any party under the False Claims Act or other legal authorities for any improper billing, claims submission, cost reporting, or related conduct.
This opinion is also subject to any additional limitations set forth at 42 C.F.R. Part 1008.
The OIG will not proceed against [name redacted] with respect to any action that is part of the Proposed Arrangement taken in good faith reliance upon this advisory opinion, as long as all of the material facts have been fully, completely, and accurately presented, and the Proposed Arrangement in practice comports with the information provided. The OIG reserves the right to reconsider the questions and issues raised in this advisory opinion and, where the public interest requires, to rescind, modify, or terminate this opinion. In the event that this advisory opinion is modified or terminated, the OIG will not proceed against [name redacted] with respect to any action that is part of the Proposed Arrangement taken in good faith reliance upon this advisory opinion, where all of the relevant facts were fully, completely, and accurately presented and where such action was promptly discontinued upon notification of the modification or termination of this advisory opinion. An advisory opinion may be rescinded only if the relevant and material facts have not been fully, completely, and accurately disclosed to the OIG.
Sincerely,
Footnote:
1 We rely on this certification regarding Requestor's disclosures to Policyholders of their rights to use any hospital without penalty. If it is incorrect, this opinion is without force and effect.
Democratic Senatorial Campaign Committee Issues Statement on Missouri Republican Senate Primary
Health Affairs Journal Issues 15 Research Articles in July 2018 Edition
Advisor News
Annuity News
Health/Employee Benefits News
Life Insurance News