November 1, 2021 (Falls Church, VA) The International Chiropractors Association is sharing a recent favorable ruling out of the U.S. Department of Health and Human Services’ Office of the Inspector General (HHS OIG). We share this good news and offer words of caution as this is NOT an across the blanket approval to do the same thing. Background: An unnamed chiropractic clinic operator with multiple clinics through legal counsel requested an advisory opinion from the HHS OIG: “regarding a proposal to extend an existing discount program for chiropractic patients to include Federal health care program beneficiaries” and “if undertaken, would constitute grounds for the imposition of sanctions under: the civil monetary penalty provision at section 1128A(a)(7) of the Social Security Act” related to the “”Federal anti-kickback statute and the Beneficiary Inducements CMP.”
The OIG states: Under the Proposed Arrangement: Requestor would permit all patients, including Federal health care program beneficiaries, to utilize any offered discounts on the same terms. Any such discounts would be offered and advertised to the general public and not targeted to Federal health care program beneficiaries. Consistent with its current practice, under the Proposed Arrangement, Requestor would offer various discount promotions throughout the year, each of which would be limited in supply, expire on a specified date, or both. Requestor does not and would not notify patients of any discount offers while patients are at a clinic; in other words, patients already must be aware of a
discount offer and must affirmatively ask for the discount when they present for an appointment. Requestor charges its standard rates to patients who do not request a discount.
It was noted, “The chiropractors are enrolled as non-participating providers with Medicare.” and that “Requestor certified that, when billing Medicare beneficiaries, it adheres to the Medicare Physician Fee Schedule, which sets limiting charges for covered services.”
Through the ruling, it was obvious there was some back and forth between the OIG and the Clinic in order to be entirely accurate in the information they were evaluating.
The OIG Issued Opinion Stated, “Based on the relevant facts certified in your request for an advisory opinion and supplemental submissions, we conclude that: (i) although the Proposed Arrangement, if undertaken, would
generate prohibited remuneration under the Federal anti-kickback statute if the requisite intent were present, the OIG would not impose administrative sanctions on Requestor in connection with the Proposed Arrangement under sections 1128A(a)(7) or 1128(b)(7) of the Act, as those sections relate to the commission of acts described in the Federal anti-kickback statute; and (ii) although the Proposed Arrangement, if undertaken, would generate prohibited remuneration
under the Beneficiary Inducements CMP, the OIG would not impose administrative sanctions on Requestor in connection with the Proposed Arrangement under the Beneficiary Inducements CMP or section 1128(b)(7) of the Act, as that section relates to the commission of acts described in the Beneficiary Inducements CMP.
CAUTION: This does not mean you are clear to use discounts with Federal beneficiaries.
The OIG in the ruling that this is not a ruling that applies across the board. This opinion ONLY applies to the requestor, not to all chiropractors. Remember the law referenced carry both criminal and monetary penalties, so caution is warranted. This is good news though, on many levels. The most important of which is that what one has done, others may also do.
A RoadMap Now Exists: The great news is that now a roadmap exists for you if you desire to seek a similar advisory opinion, your attorney is not starting from scratch.
Thank you to the “Unnamed Clinic Owner” for blazing this trail!
Last updated on November 1, 2021 at 1:35 pm