People become chiropractors so they can help others.
The funny thing is that some totally acceptable business practices for gaining new customers and generating revenue are prohibited in many healthcare settings.
In some industries, for example, it is legal to reward those who refer business to you; however, in federal healthcare programs, paying for referrals is illegal.1
The healthcare landscape continues to change and be in the news. As a case in point, the chiropractic profession is fighting to maintain the right to diagnose in its scope of practice in Texas, which was challenged by the Texas Medical Association.
These kinds of events suggest that evolving into a multidisciplinary practice may be a solution for staying relevant yet there are many legal aspects that must be navigated to ensure regulatory compliance.
The major rules and regulations applying to multidisciplinary practices include anti-kickback and Stark laws.
Ignorance is no excuse
Healthcare rules and regulations can be so complicated to understand that they often require specialist attorneys to interpret and explain what they actually mean.
But this raises the question of how healthcare professionals can be expected to fully know these rules. Becoming more aware of the law helps ensure you are doing the right thing and having a healthcare attorney review what you are doing is essential.
Increasing your awareness and knowledge in this area is the first step in taking responsibility for what you do and protecting your investment of time, education, and effort in building a practice to give back to your patients and community.
In this regard, familiarize yourself with the basics about anti-kickback and Stark laws because they are mandatory to follow, no matter how challenging to interpret.
2 key laws
The federal Anti-Kickback Statute is a criminal statute prohibiting the exchange or offer of anything of value in an effort to induce or reward the referral of federal healthcare program business. (See 42 U.S.C. § 1320a-7b.)
The penalties can be criminal fines up to $25,000 per violation, and up to a five-year prison term per violation.
The Stark Law prohibits a physician from referring Medicare patients for designated health services to an entity with which he or she (or an immediate family member) has a financial relationship, unless an exception applies. It also prohibits the designated healthcare entity from submitting claims to Medicare for services resulting from a prohibited referral. (See 42 USC § 1395nn.) Stark violations are potentially $15,000 in fines per violation and up to three times the amount claimed.2
In the event of civil and administrative False Claims Act (also called the “Lincoln Law”) liability, there is a potential $50,000 penalty per violation, with a civil assessment up to three times amount of the kickback. (See 31 U.S.C. §§ 3729–3733.)
Anti-kickback statute violations, as well as violations of the Stark Law, now make up most False Claims Act cases. One of the critical areas scrutinized is the need to demonstrate fair market value of payments to demonstrate they are not in exchange for referrals. Some identifiable problems could include renting space to another doctor at a lower-than-normal rate due to referrals, or rental of equipment at too low of a rate.
Other commonly seen violations are giving patients something in exchange for a referral, such as a free adjustment or massage, or offering them gift certificates for other items.
Be wary of requests and arrangements to pay companies or individuals to recruit patients for your practice or receiving money, gifts, or other arrangements for the referrals you give, no matter if it seems like a friendly offer or a generous gesture.
Also, be careful of rental agreements and the leasing of equipment if the cost is significantly below or above fair market value.
Another arrangement that can be problematic is an entity offering to pay for your front office staff or someone to aid your office that you would normally have to pay for. The Office of Inspector General (OIG) has found this to be improper remuneration to the physician.3
Watch the perks
Although some doctors think that free lunches, subsidized trips, and gifts do not affect their medical judgment, research shows that these types of perquisites can influence prescribing practices. Recent pharmaceutical company settlements with the Department of Justice (DOJ) and OIG require transparency in physician- industry relationships, whether by requiring pharmaceutical companies to provide the government with a list of physicians whom they have paid or by forcing public disclosure by the company of physician payments.
And beginning in 2013, the Patient Protection and Affordable Care Act (PPACA) of 2010 has required drug, medical device, and biologic companies to publicly report nearly all gifts or payments they make to physicians.4
To enforce these rules and regulations, the Department of Health and Human Services (HHS) and DOJ in 2009 created the Health Care Fraud Prevention and Enforcement Team (HEAT) Task Force, whose actions led to a 75 percent increase in the number of individuals charged with criminal healthcare fraud.
HHS and the OIG recommended providers establish and follow a compliance program to avoid fraudulent activities and ensure that they are submitting correct and accurate claims. The following seven components are the basis of a voluntary compliance program:
- Conduct internal monitoring and
- Implement compliance and practice
- Designate a compliance officer or
- Conduct appropriate training and
- Respond appropriately to detected offenses and develop corrective
- Develop open lines of communication with
- Enforce disciplinary standards through well-publicized
With the passage of the PPACA, physicians who treat Medicare and Medicaid beneficiaries have been required to establish a compliance program.5
The DOJ announced in 2015 that the government recovered more than $3.5 billion from False Claims Act cases, of which more than $2.8 billion was recovered from cases filed under its whistleblower provisions.
Whistleblowers are awarded 15 to 30 percent of payments recovered, and in 2015, the government paid whistle- blowers a record $597 million dollars.
Play by the rules
Being a doctor is one of the most rewarding professions because you get to help people and restore health, function, and happiness. And it can be frustrating to have to wade through complex rules and regulations when all you want to do treat patients. But the first step is to learn the law and the next is to remember you have a duty to continue to work hard for the patients who need you.
Stephanie Higashi, DC, is the CEO and founder of Health Atlast, a multidisciplinary healthcare franchise. She has been recognized as a top healthcare professional by ABC, CBS, NBC, and Fox News. She can be contacted at 310- 980-9108, firstname.lastname@example.org, or through healthatlastnow.com.
Disclaimer: This column is provided for educational purposes only. The information contained herein is not being presented as legal advice. Consult with an attorney in regard to compliance with any and all regulations.
1 Office of Inspector General. “A Roadmap for New Physicians: Fraud and Abuse Laws.” https://oig.hhs.gov/compliance/physician- education/01laws.asp. Updated Dec. 2016. Accessed Dec. 2016.
2 Office of Inspector General. “Cultivate a Culture of Compliance with Health Care Laws.” https://oig.hhs.gov/compliance/provider- compliance-training/files/starkand akscharthandout508.pdf. Updated Dec. 2016. Accessed Dec. 2016.
3 Office of Inspector General. “Fraud Alert: Physician Compensation Arrangements May Result in Significant Liability.” https://oig.hhs. gov/compliance/alerts/guidance/Fraud_Alert_P hysician_Compensation_06092015.pdf. Published June 2015. Accessed Dec. 2016.
4 Office of Inspector General. “A Roadmap for New Physicians: Avoiding Medicare and Medicaid Fraud and Abuse. https://oig.hhs.gov/ compliance/physician-education/roadmap_ web_version.pdf. Updated Dec. 2016. Accessed Dec. 2016.
5 Office of Inspector General. “Federal Register Vol 65, No. 194.” http://www.oig.hhs.gov/ authorities/docs/physician.pdf. Published Oct. 2000. Accessed Dec. 2016.