‘Twas just the season to be gifting and hopefully you received many gestures of appreciation for your dedicated work during the year.
Of course, though, there are rules to be followed when a doctor gets a gift, so let’s take a look at those.
Let’s start with gifts from patients.
You are a fiduciary for your patients, bound to only act for their good, and a gift can skew that. On the other hand, the emotional rigors of medical care can form a bond that payment for services alone does not address, and a gift can strengthen the relationship with your patient.
Inevitably, the answer as to whether a gift can be accepted is going to be unique to the particular situation.
AMA Opinion 10.017 (Gift from Patients) does provide some guidelines. It acknowledges that gifts from patients can be genuine expressions of appreciation or be part of the patient’s culture, but also cautions doctors to consider the value of the gift relative to both the patient’s and the doctor’s means and to ensure that a gift does not influence the care that the patient receives.
State laws parallel this, extending punitively to situations that suggest exploitation of the patient but otherwise leaving the matter largely up to the judgment of the physician.
Let’s look at the – fortunately rare – exploitation situation first.
The well-known case in which a doctor was successfully sued by the estate of George Harrison for the return of memorabilia that the doctor was alleged to have coerced his dying patient to sign is what most doctors will typically think of in this regard, but an exploitative situation can actually be initiated by the patient. The patient may also be able to easily afford what they are being “encouraged” to give but the situation will still be one of exploitation.
To understand how these lines blur, consider the case of Hugette Clark, an heiress worth $300 million. After entering a prestigious hospital in New York, she then never left. Despite no longer needing care she just stayed for a decade, paying over $800/day for her room and endowing the hospital with an additional $4 million, and giving her personal doctor $800,000. That was petty cash to her but the money was still able to be recouped by her estate on the basis that the hospital and the doctor were enabling her to keep the money spigot open.
The essential point that will apply in all gift scenarios is that the gift must truly be one, something that is given freely by a competent patient without overweening by the doctor whom they are dependent on.
The flip side of exploitation by the doctor is manipulation by the patient.
The AMA Opinion holds that “Some patients may attempt to influence care or to secure preferential treatment through the offering of gifts or cash. Acceptance of such gifts is likely to damage the integrity of the patient-physician relationship. Physicians should make clear that gifts given to secure preferential treatment compromise their obligation to provide services in a fair manner.”
The motive for the gift must therefore be actual generosity. A quid pro quo for future care or to influence the doctor’s medical decision-making is an inherently unacceptable gift.
This is the case even if the gift is not of a high value.
You would certainly understand that the rich patient who sends you a first edition anatomy atlas autographed by Frank Netter, hoping that you will be influenced to get her into a clinical trial, has offered you something that you cannot accept, but you must also recognize that the patient who brings homemade brownies to “sweeten” your judgment as to including him in the same trial is also presenting a prohibited situation.
The expensive book should just not be accepted, as it simply raises too many questions about your clinical impartiality, but if you do take the brownies then you must clearly state that any efforts to get the patient into the trial are a completely separate issue although you will do your best, just as you always would.
Another setting in which there could be an attempt to influence the doctor is when the gift is the result of fundraising.
This should never be based on the doctor then delivering selective care. Therefore, when a rural town that does not want to lose you, its sole family practitioner, holds a drive to support your office, you can accept the money because it is not tied to individual patients making specific requests for care, but if your well-connected patient runs a lucrative fundraiser for your research and then presents the proceeds in the context of you prioritizing his own entry into your renal disease protocol is not permissible.
You should also be alert for the pitfalls regarding gifts as charitable donations.
A donation in your name to a charity that funds cleft repair procedures in developing countries made by the parents of the child whose cleft palate you masterfully repaired, is fully permissible, but the one in your name to a charity that supports liver disease research from parents who want you to accelerate their child’s access to a transplant obviously would not be.
To eliminate all of these issues, any individual gift should therefore come after the care being thanked for, care that was offered and rendered solely based on clinical reasons, is over, and any fundraising gift must be presented generally.
The next step, even when the patient’s purpose is pure personal gratitude, is the gift’s value.
As per the AMA Opinion, “No fixed value determines the appropriateness or inappropriateness of a gift from a patient; however, the gift’s value relative to the patient’s or the physician’s means should not be disproportionately or inappropriately large. One criterion is whether the physician would be comfortable if acceptance of the gift were known to colleagues or the public.” The gold bracelet that a wealthy patient slips into your scrub pocket as he is leaving the hospital with a healthy leg after you did a bypass and saved it is acceptable, albeit borderline, but the title papers to an expensive car would not be. A bottle of expensive Scotch from a lawyer when you get her lymphoma into remission would be acceptable, but the same gift for the same reason from a retired school custodian living on Social Security should give you pause.
A gift may also be large in the aggregate but individually acceptable in its parts, so when the town mentioned above collects over $50,000 the doctor can accept the gift if each of the townspeople only gave what they could afford and no one gave a large amount that is overwhelming compared to the diminished financial status of the doctor.
Finally, there is “tipping” – an additional payment beyond what is billed – to consider. Even if this is not attempted manipulation it should always be avoided, not just because it is inherently suspect because it is cash but because it is routine rather than being after an unusual type of care or at an occasion like Christmas typically associated with gifting. It may be due to genuine appreciation but it is actually payment beyond what a payor has set, and the doctor has agreed to, as payment-in-full for the care, and so while it is not actually fraud it will be hard to prove that it is not. The patient who wants to hand you extra cash after a visit should be thanked warmly and told that a great online review would be appreciated but that you cannot take payment beyond what is authorized.
Of course, in every setting the doctor must be aware of any limitations that their hospital or group has placed on accepting gifts.
The summary advice that all of these principles result in for holiday gifts is simple: If a patient wants to thank you for care that you already gave them and is offering an item that they can afford and that is not itself too inherently pricey, you can accept it with gratitude. If the gift is actually intended to change your clinical judgment or would strain the giver to give it, then be gracious but demur.
Before we leave this section, let’s look at a more unusual type of gift: bequests in a patient’s will.
You do not have to be Lenny Briscoe to see how questionable that situation is on its face: the bequest can only be obtained after the patient is dead and it is being obtained by the person who was supposed to keep them alive. The possibility that a disgruntled family member who had their eye on that bequest will claim that medical care choices were influenced by that potential for personal gain is obvious.
The AMA Opinion addresses the propriety of a doctor accepting a bequest when it states that “If, after a patient’s death, a physician should learn that he or she has been bequeathed a gift, the physician should consider declining the gift if the physician believes that its acceptance would present a significant hardship (financial or emotional) to the family.”
However, even if there will be no such disadvantage to others, the doctor should also consider whether they deserve the bequest. If it is disproportionate to the relationship they actually had with the patient (length of the association, medical care actually delivered) they should consider that it was inappropriately left to them and should decline it.
Now, let’s look at the issue of gifts from doctors to patients, something that you may be contemplating this season.
Obviously, if a patient is also a friend you can give them a personal gift but if you are considering general gifting then you need to bear two laws in mind: the Anti-Kickback Statute and the Civil Monetary Penalty Law, laws which prohibit inducements (“anything of value”) to beneficiaries of public healthcare programs to come to a practice or to use its services. There may also be a state anti-kickback law where you practice that extends this to private payors.
The breadths of these laws and their exceptions are beyond the scope of this column, but here we are only concerned with low value gifts, which can be accommodated under both.
If you want to do something nice for your patients in the spirit of the holidays, such as gift cards for popular merchants (but not cards that can be exchanged for cash, which is always prohibited), this should be extended to every patient regardless of their coverage and to self-pay patients as well (to clearly separate it from a program targeting public payor beneficiaries), limited to current patients and not advertised (to ensure that it does not look like marketing for new patients), and kept at $10 (safely below the CMP’s cut-off of $15 per patient /$75 per patient per year). The practice should also keep an accurate accounting of the value of the gifts.
Now let’s take a look at gifts involving businesses.
AMA Ethics Opinion 8.061, “Gifts to Physicians from Industry” provides essential guidelines:
- “Physicians should prescribe drugs, devices, and other treatments based solely upon medical considerations and patient need and reasonable expectations of the effectiveness of the drug, device, or other treatment for the particular patient.”
- “Physicians may not accept any kind of payment or compensation from a drug company or device manufacturer for prescribing its products.
- “No gifts should be accepted if there are strings attached.”
- Gifts should not be of “substantial value”.
The wine and cheese basket with a generic corporate holiday card that arrives at your radiology office at Christmas from the company that you bought equipment from can be enjoyed because it is just good customer service after a purchase and has not only been sent to you.
The same basket arriving at your internal medicine office from a company that makes a new osteoporosis medication, though, is more complicated. If you are already impressed with the drug and prescribing it irrespective of a generic gift then you would clearly be within the guidelines. If a generic basket comes with a promotional brochure and a glossy placard to put up in your waiting room then it is questionable since it is intended to influence your prescribing habits but that is still only hopeful on the company’s part and not an “attached string” since you could enjoy the basket and never prescribe the drug. A “platinum basket” that includes champagne and truffles that you got only because you prescribe the drug widely and that is a clear incentive to do so again to get another expensive freebie would not be acceptable.
Your hospital may also be gifting staff members, which can be problematic because such can be to encourage referrals as much as to express appreciation for great work. Exceptions in the Stark regulations do, though, allow hospitals to give medical staff members gifts (up to a set value adjusted for inflation; $423 in 2020) as long as those are not solicited by the staff member or tied to referral volume. If you get a gift from your hospital, just make sure that it has no referral strings and is reasonably within the financial limit – if not, return it.
Cash from any source, even if sent to the entire office to “Enjoy yourselves!”, should always be rejected because it looks like either a kickback or “play for pay”.
The last aspect of gifting to consider is that between practices.
Whether you are the gifter or the recipient, when a gift passes between you and a practice that you have a referral relationship with you have entered the territory of the Anti-Kickback Statute, which bars gifting if even one purpose is to induce referrals. Stark is also invoked because gifts create a financial relationship between the parties that would prohibit referrals unless there is an exception.
If you do still decide to send out gifts to other practices you should therefore do so very circumspectly.
The OIG says that “nominal” gifts will be permissible but does not say what that term means, but a reasonable guidepost could be the $75 maximum per patient that the CMP allows but not up to the $423 per physician that Stark allows; you can get a very respectable treat basket for an amount that will not interest regulators. Then, even within that limit, whatever you send should be the same for every recipient to make clear that it is not related to referral volume.
In summary: The key to ethically and legally acceptable gifting, as either a recipient or a gifter, is that the process has to be about genuine gratitude in the personal setting or good customer or staff relations in the business one. Complicating motives of attempting to manipulate clinical decisions or induce referrals create violations of both ethics and law.