7 Simple Rules for Holiday Gifting in Health Care

It’s the most wonderful time of the year, but if you’re not adhering to gift-giving rules this holiday season, it can be the most legally risky time of the year. Now, I’m not talking about gift-giving between friends—although there should probably be a law against regifting fruitcake, am I right? I’m talkin’ specifically about gifts between patients and their providers.

Let’s be honest: your patients adore you. And why shouldn’t they? You give them the gift of better health with every therapy session, so it’s only natural that many feel compelled to give you a holiday gift to express their appreciation. So, can physical therapists accept gifts from patients? Well, before you accept anything from your patients—or give them a gift of your own—be sure that you take the following guidelines into consideration:

1. Be generous, but not too generous.

’Tis the season of giving, but the Office of the Inspector General wants to make sure you’re not expecting something in return. You’ve likely heard of the Anti-Kickback Statute, which was developed by the OIG. (If not, you can read all about it in this post.) In a nutshell, this statute prevents healthcare providers from enticing patients insured under federal health plans to come see them, even if those enticements are considered “gifts.” But, the OIG isn’t a total Scrooge: you’re free to give gifts to your referral sources as long as they meet the following minimum requirements (updated per the 2016 final rule):

• No more than $15 per gift.
• No more than $75 in aggregate over the course of a calendar year.

So, you can give gifts to your patients, but the point of the AKS is to ensure healthcare providers aren’t unethically buying referrals.

2. Just say “no” to cash gifts.

Sometimes a little extra cash is the best gift you could receive. But, accepting cash—or a cash equivalent like a gift card—can spark a pretty questionable ethical dilemma. After all, it’s one thing to receive an arrangement of fruit shaped like flowers—but it’s quite another to be handed cold hard cash by someone to whom you’ve referred a patient. That’s where the Stark Law comes in; it’s “all about the benjamins, baby.”

Under the Stark Law, a healthcare provider cannot accept any kind of monetary compensation (cash or gift cards) from another provider if the two providers have a financial relationship. However, a provider can accept non-monetary gifts from another provider if:

• It does not exceed the per-year aggregate ($398 as of 2017); and
• It does not take into account the number of patients referred.

3. When in doubt, contact your company’s legal or compliance officers.

The Anti-Kickback Statute and Stark Law are both pieces of Federal legislation, meaning they are applicable in all 50 states. However, every state also has its own version of the Anti-Kickback Statute, which adds a whole other layer to an already very complicated set of regulations. That’s why it’s crucial to keep the law on your side—and on speed-dial. If you’re ever unsure about whether or not a gift falls under an AKS safe harbor or Stark Law exception—or if you need clarity on certain rules or how to apply them—contact your practice’s attorney or compliance officer to determine the best course of action.

4. Scrutinize anything of value that you receive from a vendor.

There’s no such thing as a free lunch. And for the vast majority of vendors, no move is 100% altruistic. After all, their end game is to make money. So, you can see how accepting any kind of gift or donation from a vendor could create a conflict of interest. And if you receive reimbursement from any kind of federal program (e.g., Medicare or Medicaid), there could be legal implications under the AKS. So, before you accept anything free from a vendor, it’s a best practice to first check with your legal or compliance officers.

5. Turn down gifts that are intimate or personal in nature.

So, we all know that accepting overly intimate gifts from patients is a major no-no, right? In addition to being super awkward, overly personal relationships can be detrimental to patient health. Also, it’s important to have boundaries with patients, no matter what kind of relationship you have with them, as this ensures both patient and provider safety.

6. Establish a written gift-giving policy.

In this WebPT Blog article, PT compliance expert Tom Ambury gives some examples of what that policy should include:

• “Employees may not accept personal gifts such as jewelry or clothing.
• Employees may accept food gifts as long as they share those gifts with all employees.
• If a patient wants to give cash, employees should ask the patient to donate the amount to the charity his or her choice. (You also have the option of providing patients with a list of preferred charities.)”

7. Use good judgment when you—or your staff—are unsure of whether a gift meets the criteria for acceptable gifting.

If you’re like me, then you likely have a hard time saying “no” to a heartfelt gift. But sometimes, it’s more important to put your own feelings aside and approach a gift-giving situation from the perspective of patient health. It may also be prudent to have a quick chat with your staff at the start of the holiday season to explain:

• Why you should turn down gifts if you’re unsure about the giver’s motivations;
• What to do when a patient, vendor, or referring physician offers you a gift;
• The ins and outs of your practice’s written gift-giving policy; and
• Who to contact with any questions.

In the rehab therapy world, holiday presents can be gifts that keep on giving—and not in a good way. So, this holiday season, make a list, check it twice, and confirm which gift-giving practices are naughty—or nice. If you don’t, then the federal government just might come to town.