Carefully Abide by the Rules When Marketing to Referral Sources and Consumers

For a provider to succeed financially, he or she needs to have positive
relationships with physicians and other referral sources. However,
relationships between providers, referral sources and consumers are highly
regulated in the health care industry, and any missteps by the provider can
lead to criminal or civil charges, according to Jeffrey S. Baird, JD.

Baird, of Brown and Fortunato, PC, in Amarillo, Texas, discussed the
ways providers can legally market and cultivate relationships with their
referral sources and consumers at the Essentially Women’s Focus on the
Future meeting in Glendale, Ariz.

“Some of the statutes and regulations discussed are pretty much
black and white,” Baird told O&P Business News. “But some
are quite vague and contain broad language that makes it difficult to determine
if you violated the rule.”

The most widely known of all federal antifraud statutes is the
Federal Anti-Kickback Law. According to the Office of
Inspector General, the law states that anyone who knowingly and willfully
receives or pays anything of value to influence the referral of a federal
health care program or business, including Medicare and Medicaid, can be held
accountable. Violation of the law includes a maximum of 5 years in prison and
fines totaling as much as $50,000. Despite the broad language, Baird has seen
people go to prison for violating the law.

“This is an intent-based statute,” Baird said. “The
provider must intend to do something wrong. If your gut tells you that what you
are doing is a kickback, then we have a problem.”

There are exceptions to the statute:
safe harbors. “The Office of Inspector General came out
with a number of hypothetical facts and situations where if you fall within
these situations, you are not considered in violation of the statute,”
Baird said. “Anytime an arrangement falls under safe harbor, you are not
in violation.”

But according to Baird, these exceptions are narrowly drafted, as
opposed to the broad language of the statute, making it difficult for
individuals to determine if they fall under safe harbor. If the individual
feels as though their arrangement or relationship with a referral source or
consumer does not fall under safe harbor, Baird recommended that they examine
the language and conduct their own personal risk/benefit analysis.

“At the end of the day, the question that needs to be asked is
whether this arrangement, even if it does not fall under a safe harbor, would
be considered by the federal government as offensive or abusive, such that it
would bring an enforcement action,” Baird said. “Often, what you have
to do is look at the relationship and say, ‘Technically it could violate
the statute, but the Medicare program is not getting abused and it is not
offensive.’ If it passes the smell test, it is unlikely the government
would get involved. That is the analysis you would have to go through.”

Unlike the Anti-Kickback Law, the language in the
Physician Self-Referral Law, also known as the Stark Law, is
clear. The Stark Law prohibits a physician from making referrals for certain
designated health services (DHS) payable by Medicare to an entity with which he
or she has a financial relationship, according to the Centers for Medicare and
Medicaid Services (CMS). CMS also published a list of items or services that
are considered DHS, and these include prostheses, orthoses and orthotics and
prosthetics supplies. If there are any questions regarding a relationship,
association or gift, Baird suggested consulting a health care attorney who can
advise you about the regulations and help to map out your next steps.

“Those are the smart business people,” he said. “Now,
there certainly others out there who are bright but do not have a strong moral
compass. They purposely do not go through the process because if they ever get
in trouble, they can assert plausible deniability. That is not a defense.
Still, there are others that are just clueless. That surprises me.”

Individuals who are honest, bright and competent will go through the
process or will go to an experienced health care attorney seeking advice,
according to Baird.

“The best way a provider uses us is by calling us before a deal is
reached so we can go over the situation,” Baird said. “Our approach
will be, ‘That looks good, make the deal,’ or ‘We are
uncomfortable with this situation, but here are a couple of alternatives.’
It is better to get it right going into a deal than trying to pick up the
pieces afterwards.” — by Anthony Calabro

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