Marketing to Medicare patients: gifts, free offers and Medicare wording for practices

Many practices want more Medicare patients, and many already depend on them: primary care, cardiology, eye care, podiatry, physical therapy, audiology and others. The ideas that work well in other markets, such as a free first visit, a gift card for booking, a raffle or a ride to the office, are exactly the ones a federal law aimed at Medicare and Medicaid patients restricts.

This guide is for practices marketing their own services to people with Medicare. It does not cover marketing of Medicare Advantage or Part D plans, which are insurance products with their own CMS rules. It covers what you can give, what you can say, and how to word common offers. Rides, parking and other help for patients who already chose you are in our guide to free rides and patient support perks. For PACE outreach, required content and gift limits, see PACE program marketing.

The beneficiary inducement law in one paragraph

Under 42 U.S.C. 1320a-7a(a)(5), a person who offers or transfers remuneration to someone eligible for Medicare or a state health care program, which the person knows or should know is likely to influence that individual to order or receive Medicare or Medicaid payable items or services from a particular provider, practitioner or supplier, is subject to civil monetary penalties. Under 42 CFR 1003.110, remuneration includes waivers of copayments, coinsurance and deductibles and transfers of items or services for free or for other than fair market value.

Two things make this law different from general advertising rules. It is about what you give, not only what you say. And it looks at whether the gift is likely to influence the patient’s choice of provider, which is usually the whole point of a marketing offer.

The federal anti-kickback statute, 42 U.S.C. 1320a-7b(b), can also apply. It makes it a crime to knowingly and willfully offer or pay remuneration to any person to induce them to purchase or order items or services payable by a federal health care program.

Gifts of nominal value

The OIG policy statement of December 7, 2016 says Congress intended inexpensive gifts of nominal value to be permitted, and that OIG interprets nominal value as a retail value of no more than $15 per item or $75 in total per patient per year. The items may not be cash or cash equivalents. If a gift is at or below these limits, it does not need to fit an exception.

In practice that covers things like a branded pen, a water bottle or a pill organizer handed out at a health fair. It does not cover gift cards, which work like cash, or a dinner seminar with a meal worth more than the limit. Keep a simple log of what you give and its retail value, so the per-patient yearly total is easy to check.

• Usually fine: low-cost branded items within the nominal value limits, given to anyone who stops by.
• Risky: gift cards, cash, raffles for valuable prizes tied to booking, free meals above nominal value at seminars for Medicare patients.
• Ask counsel first: anything over the limits, anything tied to scheduling a visit, and any offer aimed only at Medicare or Medicaid patients.

The exceptions in 42 CFR 1003.110

The regulation lists things that are not remuneration under the beneficiary inducement law. Several matter for practice marketing:

1. Copay and deductible waivers for financial need. A waiver is excluded only if it is not offered as part of any advertisement or solicitation, is not routine, and follows a good faith determination of financial need or failed reasonable collection efforts. In other words, you cannot advertise it. Our guide to new patient offers covers copay waivers in more detail.
2. Items or services that improve access to care. Items or services that improve a beneficiary’s ability to obtain Medicare or Medicaid payable care and pose a low risk of harm: unlikely to interfere with clinical decisions, unlikely to increase costs through overuse, and not raising safety or quality concerns.
3. Retailer rewards. Coupons, rebates or other rewards from a retailer, offered on equal terms to the general public regardless of insurance status, and not tied to Medicare or Medicaid payable services.
4. Help based on financial need. Free or discounted items or services that are not advertised, are not tied to other payable services, are reasonably connected to the person’s medical care, and are given after a good faith determination of financial need.
5. Preventive care incentives. Incentives to promote preventive care services, as defined in the regulation, that are not tied to other payable services, are not cash or convertible to cash, and are not disproportionately large compared with the value of the preventive care.

Notice how often the conditions say not advertised or not part of a solicitation. Several exceptions protect help you give quietly to patients who need it, not offers you put in an ad.

Free rides to the office

Transportation is a real barrier for many older patients, and the anti-kickback safe harbor at 42 CFR 1001.952(bb) protects some free or discounted local transportation. Its conditions include a written policy applied uniformly and consistently, no air, luxury or ambulance-level transportation, and availability only to established patients, along with distance limits set out in the rule.

For marketing, the key condition is that the eligible entity does not publicly market or advertise the free or discounted transportation, and that no marketing of health care items or services happens during the ride. So a ride program can exist, but it should not be in your ads, on your billboards or in a mailer. Tell established patients about it when they need it. Our guide to dialysis center marketing applies the same limits to rides, gifts and premium help in kidney care.

Using the word Medicare in your marketing

42 U.S.C. 1320b-10 prohibits using words such as Medicare, Medicaid, Centers for Medicare & Medicaid Services, CMS or HHS, or their symbols or emblems, including a reasonable facsimile of the Medicare card design, in advertising or other communications in a manner that conveys, or could reasonably be read as conveying, the false impression that the communication is approved, endorsed or authorized by those agencies or that the sender has a connection with them. The law covers internet and other electronic communications.

Saying that your practice accepts Medicare is a plain statement of fact. The risk is in design and framing:

• Do not make a mailer or landing page look like a government notice, a Medicare card or an official benefits letter.
• Do not use phrases such as Medicare approved practice or official Medicare provider in a way that suggests endorsement.
• Do not use agency logos.
• Do write plainly: we accept Medicare, or our physicians participate in Medicare, if that is true for each one.

Wording for wellness visits and covered services

Practices often promote the Medicare yearly wellness visit. The Medicare.gov page on yearly wellness visits says patients pay nothing for it if the doctor or other health care provider accepts assignment, and that other costs may apply. It describes the visit as a conversation-based visit to create a prevention plan and says it is not a routine physical exam.

That gives safe wording: describe the wellness visit as Medicare.gov does, say that Medicare covers it with no cost to the patient when the provider accepts assignment, and add that other services during the same appointment may have costs. Avoid calling it a free physical, which misstates what the visit is and hides possible costs. If you mention a cost, be accurate about what Medicare pays and what the patient may owe.

For the full outreach workflow, including eligibility dates, the same-day concerns question and the pre-visit questionnaire, see our annual wellness visit outreach guide.

Reaching Medicare patients inside the rules

Most of the marketing that works for this group does not involve gifts at all:

1. Clear website information. Which insurance you accept, whether each clinician accepts Medicare, how to get there, parking and accessibility, and what a first visit involves. See our guide to website accessibility for medical practices.
2. An accurate Google Business Profile. Hours, location and accessibility attributes kept current; see our guide to Google Business Profile for doctors.
3. Educational talks. Talks at community centers or libraries about a health topic, with refreshments kept within nominal value and no sign-up incentives.
4. Referral relationships. Built on fast scheduling and good communication, not gifts; see our guide to patient and physician referrals.
5. Answering the phone. Many older patients prefer to call. Staff or an AI front desk can answer coverage and directions questions after hours and hand clinical questions to your team.

Our patient lead generation work for practices that see Medicare patients is planned around these rules: offers are reviewed for inducement issues before they run, and nothing is offered that depends on a patient booking.

Sources

• 42 U.S.C. 1320a-7a: Civil monetary penalties (beneficiary inducement, subsection a(5))
• 42 CFR 1003.110: Definitions (remuneration and its exceptions)
• OIG: Policy Statement Regarding Gifts of Nominal Value to Medicare and Medicaid Beneficiaries (December 7, 2016)
• OIG: Special Advisory Bulletin, Offering Gifts and Other Inducements to Beneficiaries (August 2002)
• 42 U.S.C. 1320a-7b: Criminal penalties for acts involving Federal health care programs (anti-kickback statute, subsection b)
• 42 CFR 1001.952: Exceptions (local transportation, paragraph bb)
• 42 U.S.C. 1320b-10: Prohibition of misuse of symbols, emblems, or names in reference to Social Security or Medicare
• Medicare.gov: Yearly wellness visits

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