The watchdog on Wednesday published a warning about marketing schemes that can mislead Medicare enrollees into choosing specific health plans or health care providers that may not meet their needs.
The Office of Inspector General (OIG) issued the alert to warn Medicare Advantage organizations, health care professionals, agents and brokers, and others about fraud and abuse risks that can lead to improper payments and referrals between Medicare Advantage plans, health care professionals, and third-party marketers such as agents and brokers.
The warning comes in the wake of its enforcement work. OIG said it has observed an increase in abusive marketing practices in recent years. The alert focuses on two types of payments that have been the focus of settlements under the False Claims Act:
- Payments from Medicare Advantage organizations to health care professionals or their staff relating to Medicare Advantage plan marketing and enrollment
- Payments from health care professionals (including payments from corporations that contract with or employ health care professionals and payments from management services organizations with which health care professionals contract) to agents, brokers, and others in exchange for referring Medicare enrollees to a particular health care professional.
Example of risks cited in the alert:
- Medicare Advantage organizations, directly or indirectly, provide payment in the form of gift cards or in-kind payments to health care professionals their staff in exchange for referring patients to the Medicare Advantage organizations’ plans.
- Payments from a health care professional to agents and brokers in exchange for recommending the health care professional to a particular Medicare Advantage enrollee or to refer the enrollee to the health care professional
“OIG is concerned that agents, brokers, and health care professionals may skew the guidance they provide related to health care professionals or Medicare Advantage plans based on their financial self-interest. When inappropriate steering is influenced by payments from Medicare Advantage organizations to health care professions or from health care professionals to agents or brokers, Medicare enrollees can face significant and detrimental consequences,” the watchdog said in the alert.
For example, OIG said Medicare enrollees switching Medicare Advantage plans could find themselves unable to access preferred health care professionals after being enrolled in a new plan, and enrollees may have higher out-of-pocket costs under a new plan.
“These harms may be particularly insidious and unexpected if enrollees are unknowingly subject to Medicare Advantage plan enrollment or enrollment changes. Additionally, enrollees, on the recommendation of agents and brokers who receive the types of suspect payments described in this Special Fraud Alert, may inadvertently choose a health care professional that provides low-quality care or is not the most appropriate for their medical needs. Moreover, there is a risk of unfair competition because the payments discussed in this Special Fraud Alert could encourage agents, brokers, and health care professionals to direct enrollees to larger Medicare Advantage organizations or certain health care professionals that can afford to make such payments, when smaller Medicare Advantage organizations s or other health care professionals may be more appropriate for an enrollee but may not have the resources to pay these improper amounts.”
These actions are in violation of the federal anti-kickback statute, OIG said. They could also lead to criminal, civil, or administrative liability under other federal laws, such as OIG’s exclusion authority related to kickbacks, the civil monetary penalties law provision for kickbacks, OIG’s authority to assess civil monetary penalties for contracting organization misconduct, the criminal health care fraud statute, and the False Claims Act. Medicare Advantage organizations, MAOs, agents, brokers, HCPs, and others may be liable under these laws for improper referral arrangements.