MAHA’s low-hanging Fruit: Enabling health Systems to deploy Food As Medicine

In line with current policy priorities—including innovation to combat chronic disease and deregulation—the Department of Health and Human Services (HHS) should be supporting health care providers across the country that wish to invest in chronic disease prevention and management through Food is Medicine, transportation services, support for home modifications, and other non-medical interventions. Yet, recent guidance issued by the HHS Office of Inspector General (OIG) illustrates the glaring contradiction in current health policy: Federal fraud and abuse laws deter health care organizations from furnishing basic health-enabling services instead of promoting high-quality, value-based health care.

In Advisory Opinion 25-02, a federally qualified health center (FQHC) sought permission to provide “non-medical, social, and educational services that enable individuals to access health care and improve health outcomes.” These services, which encompassed food boxes and meals, employment and education counseling, childcare, and legal services, were to be made available not only to the FQHC’s existing patients but also to the community writ large. Because some community members are Medicaid, Medicare, and/or Children’s Health Insurance Program beneficiaries, the FQHC was concerned that helping nonpatients get connected into primary care would be viewed as an illegal kickback or patient inducement scheme in the eyes of the law due to the community members’ receipt of non-medical supports from the FQHC.

This advisory opinion adds to a growing body of guidance that chips away at potential liability associated with health care organizations providing noncovered but medically reasonable items and services to federal health care program patients. However, as in prior opportunities, regulators do not go so far as to say that such supports, by default, pose a low risk of fraud and abuse (and, therefore, enforcement risk).