On September 24, 2008, the OIG issued an Advisory Opinion concluding that a “motivational incentive” program rewarding a patient’s achievement of certain substance abuse treatment goals would not violate the Anti-kickback statute or result in the imposition of civil monetary penalties.

In Advisory Opinion 08-14, the OIG considered an arrangement in which a substance abuse treatment center would provide motivational incentives ($5 - $10 gift certificates redeemable at certain grocery stores, food outlets and gas stations) in order to help a patient overcome difficulty with achieving abstinence, or maintaining attendance and participation in a treatment plan. While noting that motivational incentive programs could, as a general rule, be considered an inducement which would violate both the anti-kickback statute and the civil monetary penalty provisions, however, the OIG concluded that the program at issue in the Advisory Opinion would not violate these statutes because the following safeguards are in place:

  1.  The program follows the therapeutic guidelines of the National Institute on Drug Abuse and the Substance Abuse and Mental Health Services Administration’s Centers for Substance Abuse Treatment.
  1.  The incentives never take the form of cash, and are of low monetary value ($5 - $10, not to exceed $200/month or last for longer than three months).
  1. The incentives are only introduced are only introduced into a patient’s treatment on the basis of a clinical determination that such incentives are clinically indicated for the particular patient’s treatment under an established treatment plan.
  1. A patient must “earn” the motivational incentives through active, verifiable participation in core elements of his or her treatment plan, such as providing drugfree urine samples and attending sessions.
  1.  The treatment plans are certified to be medically necessary and appropriate;
  1. The incentives are not advertised and are not offered to all participants (the incentives will be clinically indicated for only 25% of the participants).

Based on these safeguards, the OIG determined it would not impose civil monetary penalties or administrative sanctions in connection with the Anti-kickback statute, but further noted that the same analysis would not apply to a motivational incentive program in which incentives routinely exceed $200 or are offered for longer than three months.