OPINION-Stark and anti-kickback laws
Susi Ebersbach
Description
Collection
Title:
OPINION-Stark and anti-kickback laws
Creator:
Susi Ebersbach
Date:
12/7/2006
Text:
I am posting this response to an earlier post regarding Stark and anti-kickback regulations (see below), for the benefit of the entire list. My apologies, but I deleted the original post and could not reply directly to it. The response is authored by John M Latsko, attorney at law, Schottenstein, Zox & Dunn, 250 West St, Columbus, OH 43215. Tel (614) 462-2315. John has also contributed an article, How Far Is Too Far With Marketing Promotions which will be included in the January 2007 issue of O&P Edge, and discusses associated information. -Susi Ebersbach, MBA, Director of Business Development, POINT Health Centers of America
Per John Latsko...Offering or accepting anything of value with the intent to induce a referral of a patient who is a beneficiary of a government program is illegal. Discounting the price of a brace for the son of a physician who refers Medicare patients to you could be viewed as a kickback in return for future referrals. Profesional courtesy discounts or total writeoffs come under the federal antikickback law if future Medicare referrals are involved. There are exceptions and safe harbors to the kickback law but none apply to this situation. The $50/$300 example applies to gifts/entertainment for referral sources and relates to several ethical codes in the pharmaceutical and medical device industries and the AMA's ethical code for physicians in regard to them accepting gifts from vendors and referral sources. They are only guidelines and there is no guarantee that gifts of those values would not be interpreted to be kickbacks. In summary, even discounting to cost the braces for the physician's son is risky unless you do it for everybody. It certainly could be viewed as the reason the discount was given to the physician and not others was so that he would continue to refer you business paid for by Medicare. Of course this is a hypothetical situation we are talking about here and this is not intended to be legal advice. You need to talk to your own attorney for advice as to your particular situation.
-----Original Message-----
From: Orthotics and Prosthetics List [mailto:<Email Address Redacted>]On
Behalf Of Susan and Harold
Sent: Sunday, December 03, 2006 1:46 PM
To: <Email Address Redacted>
Subject: [OANDP-L] Stark and anti kick back laws
I recently saw a patient who is the young son of one of my better
referring physicians. I provided him with 2 prescribed devices. Due to
their high deductible, I elected to bill them only my cost of the
devices which is my policy for employees and benefits for other
referral sources. The total amount of the benefit was under the $300
annual restriction imposed by either the Stark laws or the anti-kick
back laws. This was a few weeks ago and my office staff is concerned
that we have stopped getting referrals from this physician. They
believe that I should have given the devices to the doctor's son at no
cost at all and that the doctor may be punishing us by holding back on
referrals. Obviously, there could be other reasons for the drop in
referrals from this source but I want to be clear on these laws and how
they impact my benefits for referral sources.
In a recent coding and billing seminar, I seem to remember the mention
of a restriction of $50 per incident and $300 per year in the value of
anything given to referral sources and that they cannot be given with
the condition of referrals. Unfortunately, I didn't write it down and,
in my on line searches, I can only find the $300 restriction. Due to
the nature of these laws, I doubt that I would be caught giving a higher
value gift but it's not in my nature to get business by illegal means.
I've previously been given the opportunity to do so in order to match
what my competition seems willing to do but have turned it down. On the
other hand, I don't want to be misreading what the laws actually allow
and give up business needlessly.
Any input on how these laws affect us in the giving of gifts and/or
providing of services for referral sources?
Harold Anderson, CO
Per John Latsko...Offering or accepting anything of value with the intent to induce a referral of a patient who is a beneficiary of a government program is illegal. Discounting the price of a brace for the son of a physician who refers Medicare patients to you could be viewed as a kickback in return for future referrals. Profesional courtesy discounts or total writeoffs come under the federal antikickback law if future Medicare referrals are involved. There are exceptions and safe harbors to the kickback law but none apply to this situation. The $50/$300 example applies to gifts/entertainment for referral sources and relates to several ethical codes in the pharmaceutical and medical device industries and the AMA's ethical code for physicians in regard to them accepting gifts from vendors and referral sources. They are only guidelines and there is no guarantee that gifts of those values would not be interpreted to be kickbacks. In summary, even discounting to cost the braces for the physician's son is risky unless you do it for everybody. It certainly could be viewed as the reason the discount was given to the physician and not others was so that he would continue to refer you business paid for by Medicare. Of course this is a hypothetical situation we are talking about here and this is not intended to be legal advice. You need to talk to your own attorney for advice as to your particular situation.
-----Original Message-----
From: Orthotics and Prosthetics List [mailto:<Email Address Redacted>]On
Behalf Of Susan and Harold
Sent: Sunday, December 03, 2006 1:46 PM
To: <Email Address Redacted>
Subject: [OANDP-L] Stark and anti kick back laws
I recently saw a patient who is the young son of one of my better
referring physicians. I provided him with 2 prescribed devices. Due to
their high deductible, I elected to bill them only my cost of the
devices which is my policy for employees and benefits for other
referral sources. The total amount of the benefit was under the $300
annual restriction imposed by either the Stark laws or the anti-kick
back laws. This was a few weeks ago and my office staff is concerned
that we have stopped getting referrals from this physician. They
believe that I should have given the devices to the doctor's son at no
cost at all and that the doctor may be punishing us by holding back on
referrals. Obviously, there could be other reasons for the drop in
referrals from this source but I want to be clear on these laws and how
they impact my benefits for referral sources.
In a recent coding and billing seminar, I seem to remember the mention
of a restriction of $50 per incident and $300 per year in the value of
anything given to referral sources and that they cannot be given with
the condition of referrals. Unfortunately, I didn't write it down and,
in my on line searches, I can only find the $300 restriction. Due to
the nature of these laws, I doubt that I would be caught giving a higher
value gift but it's not in my nature to get business by illegal means.
I've previously been given the opportunity to do so in order to match
what my competition seems willing to do but have turned it down. On the
other hand, I don't want to be misreading what the laws actually allow
and give up business needlessly.
Any input on how these laws affect us in the giving of gifts and/or
providing of services for referral sources?
Harold Anderson, CO
Citation
Susi Ebersbach, “OPINION-Stark and anti-kickback laws,” Digital Resource Foundation for Orthotics and Prosthetics, accessed November 2, 2024, https://library.drfop.org/items/show/227713.
