Vasilios J. Kalogredis, with Lamb McErlane. Courtesy photo.
The HHS Office of Inspector General (OIG) issued Advisory Opinion No. 23-10 (opinion) on Dec. 15, 2023, regarding a proposal to incentivize policyholders of a Medigap plan, as described below, to seek inpatient care from a hospital within a preferred hospital organization’s (PHO) network (the proposed arrangement). Specifically, the “requestor” (i.e., collectively, the Medigap plan and PHO) inquired as to whether the proposed arrangement would warrant sanctions under Sections 1128A(a)(7), 1128A(a)(5), 1128(b)(7) of the Social Security Act (SSA), as they relate to the federal Anti-Kickback Statute (AKS) and the beneficiary inducements civil monetary penalties (CMP).
The opinion concludes that although the proposed arrangement, if undertaken, would generate prohibited remuneration under the AKS (if the requisite intent were present), as well as the Beneficiary Inducements CMP, the OIG would not impose administrative sanctions on the Medigap plan or PHO.
