Membership programs are a common tool used by retail pharmacies to grow their business. Under this type of program, a pharmacy will give member patients certain benefits, usually taking the form of rebates, discounts, or coupons on in-store items, as a way of developing customer loyalty.

As these member patients often fill prescriptions at the same pharmacy, the Federal Anti-Kickback Statute, prohibiting offering anything of value as an inducement for services covered by federal health care programs such as Medicare, is potentially implicated. Indeed, a recent advisory opinion issued by the Office of the Inspector General addressed whether a retail pharmacy's membership program might violate the Anti-Kickback Statute if open to patients covered by federal health care programs.

OIG, in the relevant Opinion, ultimately determined that the specific membership program being reviewed contained sufficient safeguards against patients being steered toward purchasing or over-utilizing services covered by federal programs. OIG therefore concluded that while membership programs continue to pose a compliance risk under the Anti-Kickback Statute, based on the specific facts presented in the Opinion, it would not pursue sanctions against the pharmacy in question. Given that the Opinion was limited to the narrow facts at hand, pharmacies are advised to ascertain that their specific membership programs do not potentially run afoul of the Anti-Kickback Statute by offering an impermissible benefit to patients.

If you have questions or require expert legal guidance regarding the Anti-Kickback Statute or other compliance matters, feel free to call the experienced attorneys in our Regulatory & Compliance Practice at (212) 668-0200 or email the firm at