Anti-Kickback Law Not Triggered By Referrals by Non-Physicians for Independent Living Services
A recent Advisory Opinion issued by the Health and Human Services Office of Inspector General (OIG) set out that a proposed arrangement by a continuing care retirement community (CCRC) to provide gift cards to individuals who referred seniors to the CCRC would not violate the federal Anti-Kickback Statute.
The underlying facts of Advisory Opinion 10-05 are as follows: Requestor operated several CCRCs, which provided the following services to seniors:
- Independent living
- Assisted living
- Skilled nursing services
The Requestor proposed an arrangement whereby current CCRC residents or employees would receive a gift card (the amount of which was redacted from the Opinion) if they recommend a prospective resident to the independent living community only. To qualify for the gift card, the current resident/employee must submit the prospective resident’s contact info; the prospective resident much be eligible for services; and the prospective resident must tour the community within 90 days.
If the prospective resident moves into the community within 12 months of the tour, the resident will receive a one-time credit (if an employee made the referral, he/she would receive a check).
Upon review, the OIG concluded that the proposed arrangement would not violate AKS for three primary reasons:
1. Independent living services are not reimbursable under a federal health care program;
2. The recommendations were made by friends or acquaintances, and not based on the healthcare needs of a prospective resident;
3. Residents/employees making recommendations are not physicians.
This opinion is of note because the OIG approved the arrangement, even though there exists the possibility that seniors who move into the independent living facilities would eventually need assisted living or skilled nursing care. However, the OIG opined that “[w]hether an individual resident referred by a current resident or employees will actually end up needing these services at some point in the future is substantially speculative and outside the control of the current resident or employee.”
Individuals with specific questions about the Anti-Kickback or Stark laws should contact an experienced health law attorney.
