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 (CMP) Law, 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.
If you want to do something nice for your patients, such as gift cards for popular merchants (cards that can be exchanged for cash are always prohibited), this should be extended to every patient regardless of their coverage and to selfpay patients (to clearly separate it from targeting public payor beneficiaries), limited to current patients, 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,” says:
- “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 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 from a company that makes a new medication, though, is more complicated. If you are already impressed with the drug and prescribing it irrespective of a generic gift, you would clearly be within the guidelines. If it comes with a promotional brochure and a glossy placard to put up in your waiting room, it is questionable since it is intended to influence your prescribing habits; but you could enjoy the basket and never prescribe the drug. A “platinum basket” 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.
Exceptions in the Stark regulations allow hospitals to give medical staff members gifts (up to a set value adjusted for inflation), as long as those are not solicited by the staff member or tied to referral volume. 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.”
Dr. MedLaw, MD, JD, is a board certified radiology and a malpractice attorney.