Advisory Opinion No. 22-04: Office of Inspector General Opines Favorably on Contingency Management Program

By: Cristina N. Hyde, JD

Earlier this year, the Office of Inspector General issued an advisory opinion that determined use of an app-based contingency management program to support addiction recovery was permissible and did not run afoul of  the Federal Anti-Kickback Statute (AKS) and Beneficiary Inducement Prohibition (BIP).

Contingency management is the use of positive reinforcement to motivate healthy behaviors and is an evidence-based and clinically valid treatment for substance abuse disorder.  However, although widely regarded as highly effective, the use of such treatment programs is often avoided due to concerns that providers will incur criminal or civil penalties under AKS and BIP.  Therefore, healthcare businesses wanting to offer contingency management as a treatment option must ask for permission on a case-by-case basis.

In this particular scenario, a privately held company developed a program that uses technology to provide a recovery support program that individuals can access anywhere and anytime.  Using smartphone technology the company provides contingency management incentives in the form of direct monetary awards.  Amid concerns that the program may incur civil and criminal penalties, the company requested an advisory opinion as to the program’s legality.

The company explained that monetary awards were provided to individuals who have achieved specific behavioral health goals via a smart debit card which is designed with abuse and anti-relapse protections.  The company also explained how one might enroll in the program, disclosed funding sources, provided information about their customer base and how fees are calculated, and explained the incentive structure of the program.

The OIG considered the specific facts presented and balanced the information against the purpose of the AKS and BIP which is to prevent Federal health care programs from giving individuals rewards in an attempt to bring in business or influence the selection of a particular provider. After a careful and detailed analysis they concluded that the program presented a minimal risk of fraud and abuse and was, therefore, permissible.

Although this conclusion was very narrowly tailored to the facts and program presented, it does provide insight into future possibilities for contingency management care and suggests that not all contingency management programs would be subject to a blanket prohibition.

If you have any question regarding your healthcare business and the Federal Anti-Kickback Statute or Beneficiary Inducement Prohibition, Contact Us.

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