In Advisory Opinion 22-08, posted on April 27, 2022, the U.S. Department of Health and Human Services’ Office of Inspector General (OIG) stated that it would not impose sanctions on a federally qualified health center (“FQHC”) that had loaned smartphones to its patients.
The OIG is authorized to impose administrative sanctions on Medicare and Medicaid providers who violate the Federal Anti-Kickback Statute (“AKS”) and/or the Civil Monetary Penalties Law (“CMPL”). Gifts of more than nominal value may be viewed as a means of inducing patients to receive additional items or services from the provider. However, in this case, the OIG concluded that the FQHC’s provision of smartphones posed a minimal risk of fraud and abuse under the AKS and satisfied the “Promotes Access to Care” exception to the CMPL based on the following:
- the FQHC only provided phones to patients who did not already have a device capable of running the necessary telehealth application;
- the provision of the phones did not appear to interfere with clinical decision-making or increase cost to Federal health care programs or beneficiaries through overutilization or inappropriate utilization; and
- the provision of phones did not pose patient safety or quality-of-care concerns.
The OIG’s analysis and conclusion is based on the unique facts presented by the FQHC, and, as is the case with all Advisory Opinions, is only applicable to the entity that requested the opinion.
Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at [email protected].