Incentives are used to get people to engage in certain behavior. Recently, incentives such as gift cards, metro passes, or free food have motivated people to get vaccinated against COVID-19. However, this process is more complicated than it sounds.
Medicare and other federal health care programs reimburse for the administration of the COVID-19 vaccine. Because of this, offering or providing incentives and rewards to anyone who receives the vaccine from a particular practitioner, clinician, or supplier may violate the federal Anti-Kickback Statute (AKS) and the Beneficiary Inducements Civil Monetary Penalty (CMP) provision. However, for the duration of the COVID-19 public health emergency, a health care clinician, supplier, or managed care organization offering or providing an incentive would be temporarily allowed with blanket waivers under the Federal AKS and Beneficiary Inducements CMP if the following safeguards are met:
- 1. The incentive or reward is furnished in connection with receiving a required dose or doses, depending on type, of a COVID-19 vaccine.
- 2. The vaccine is authorized or approved by the FDA as a COVID-19 vaccine and is administered in accordance with all other applicable federal and state rules and regulations, and meets the conditions for the clinician or supplier receiving vaccine supply from the federal government.
- 3. The incentive or reward is not tied to or dependent on any other arrangements or agreements between the entity offering the incentive or reward and the federal health care program beneficiary.
- 4. The incentive or reward is not conditioned on the recipient's past or anticipated future use of other items or services that are reimbursable, in whole or in part, by federal health care programs.
- 5. The incentive or reward is offered without considering the insurance coverage (or lack thereof) of the patient unless the incentive or reward is being offered by a managed care organization and eligibility is limited to its enrollees.
- 6. The incentive or reward is provided during the COVID-19 public health emergency.
These blanket waivers do not suspend the application of the Stark Law. Instead, they temporarily exempt from penalties certain arrangements related to COVID-19. During and after the public health emergency, parties are expected to maintain compliance efforts to document the waiver applicable to each arrangement and a valid purpose justifying the use of the waiver. These temporary waivers will expire at the end of the COVID-19 emergency, and all parties must make sure that their relationships return to Stark Law compliance. The Office of Inspector General has not indicated that it intends to issue Anti-Kickback Statute waivers; instead, it said that it would not impose sanctions under the statute on arrangements that satisfy the Stark Law blanket waivers listed above.
More information on the Anti-Kickback Statute is available on ACP's Regulatory Compliance page.