Medical Billing Forum

General Category => General Questions => Topic started by: tinapiro on June 10, 2010, 05:49:02 PM

Title: Anit-Kickback and Stark Law Question
Post by: tinapiro on June 10, 2010, 05:49:02 PM
Hello everyone!  I'm new to the forum and new to the medical billing industry.  I've been trying to think of ways to "thank" doctor's when they send referrals to me.  I would like to give them a discount on their fee, but was told by a couple of people that this would fall under the anti-kickback and stark law regulations and wouldn't be permitted.  I've read both, and I personally don't feel that this is what they are referring to.  Does anyone know for sure whether or not a discount is considered a kickback?

Thanks!!
Title: Re: Anit-Kickback and Stark Law Question
Post by: PMRNC on June 10, 2010, 09:08:40 PM
It is only a violation if you do a % and in you are in a state that prohibits percentage based contracts for providers.. OR if you are involved in patient referral's or ANY marketing for the practice because then it is a kickback. It's perfectly fine to give them a discount on their invoice as long as you are not involved in patient referral's by any means. This why you really don't see billing companies do marketing for their clients.
Title: Re: Anit-Kickback and Stark Law Question
Post by: tinapiro on June 11, 2010, 11:42:37 AM
Thanks Linda; that's what I thought it meant!
Title: Re: Anit-Kickback and Stark Law Question
Post by: Alice Scott on September 30, 2010, 09:42:50 AM
Don Franklin sent me an interesting comment on this.  With his permission I will copy his comments.

"I wanted to share a response from our Attorney regarding the anti-kickback:

What you or medical billers are actually getting is a "fee for service".  The "anti-kickback' or Stark violations only occur when the Dr. is actually splitting patient fees.  For example, if a Biller witnesses an accident and sends one of the injured parties to a specific Dr., the Dr. cannot pay part of the fee as a referral. 

No violation for helping with "Marketing" as long as the Biller is only getting paid for the billing."[/color]
Title: Re: Anit-Kickback and Stark Law Question
Post by: Ultraserve on September 30, 2010, 04:38:30 PM
Alice,

Great Info Thanks for posting it.
Title: Re: Anit-Kickback and Stark Law Question
Post by: PMRNC on October 01, 2010, 06:44:16 AM
I'm going to disagree with this attorney and explain why.  A fee for service is if I charged $5 per claim. (example)
FEE splitting is any method in which you are sharing the profits of the revenue with the provider (IE %).  If I am billing for example 6% of total practice revenue, the doctor is indeed "FEE splitting"  (receiving a portion of receivables)

Now I don't know how the scenario was presented to the attorney which could make a BIG difference in his response.

Read this again:
Quote
What you or medical billers are actually getting is a "fee for service".  The "anti-kickback' or Stark violations only occur when the Dr. is actually splitting patient fees

I also want to add another discrepancy.. the anti-kickback statute does NOT differentiate between insurance/patient payments. As that statement is written above, it says "patient" fees. The source of the revenue that is to be split, shared, etc includes all means of revenue..insurance.. and patient.  just wanted to point that out. 

I live by something that makes sense to me and it's something my attorney is also a firm believer.. IF IN DOUBT don't do it..and "BETTER SAFE THAN SORRY"
Title: Re: Anit-Kickback and Stark Law Question
Post by: DMK on October 01, 2010, 10:33:37 AM
While I agree with the legal principle, to a point, does anyone else find it sad that you can't express your gratitude to your customers without some sourpuss trying to fine you!

As a provider, we like to thank patients for referrals.  You used to be able to give them a t-shirt.  No more.  Even a card thanking them can be a HIPAA (I can never remember if it's 2 P's or 2 A's) violation.

We can't even give them a free adjustment on their birthday.   >:(  What's the world coming to when you can't be nice, or kind, or even just charitable to someone who's having a hard time?
Title: Re: Anit-Kickback and Stark Law Question
Post by: midwifebiller on October 01, 2010, 06:28:31 PM
So...the holidays are coming up and we would really like to so something for our wonderful providers--and still stay legal.

What do you all do for your clients around the Christmas/Channukah/Winter Solstice/New Years season?
Title: Re: Anit-Kickback and Stark Law Question
Post by: jcbilling on October 02, 2010, 12:18:42 AM
Thanks for posting that Alice! I was really disappointed with your recent newsletter where you all very strongly came out against a billing company helping a provider market their practice. After asking many major healthcare consultants in the industry and reading the law myself, I have to agree that it is not illegal for us to help our clients in this manner.

I realize there are those that disagree - but I think it's a valuable and legit service that our clients could benefit from.

JMO...Charity
Title: Re: Anit-Kickback and Stark Law Question
Post by: PMRNC on October 02, 2010, 12:06:27 PM
Quote
I was really disappointed with your recent newsletter where you all very strongly came out against a billing company helping a provider market their practice. After asking many major healthcare consultants in the industry and reading the law myself, I have to agree that it is not illegal for us to help our clients in this manner.

I realize there are those that disagree - but I think it's a valuable and legit service that our clients could benefit from.

You realize there are those that "disagree"?  I'm very confused.. there are many LAWS in life I disagree with..but the Stark and Anti-kickback statutes are NOT really as grey as you think..they are pretty clear cut..I dont' find them confusing.. just because we don't like it doesn't mean it isn't clear and it's something to agree/disagree with. Either you break the laws or you stay on the straight and narrow, I would think it more reasonable and fair to tell your client you want to spare them the legal consequences rather than just do it to make them happy!  ??? ??? ??? 

I have KNOWN billing companies to say "Oh I don't agree with the fee splitting laws" and turn around and do it anyway not even realizing it's not their neck on the line..it's the doctors! You are just hit in the pocket book if you are in a state that prohibits percentage based billing/fee splitting because your contract is NULL/VOID. The doctor can be sanctioned and disciplined.. I've SEEN it happen and their are case's on file with that.

"To violate the anti-kickback law, one must knowingly and willfully offer or pay, solicit or receive remuneration in exchange for referring a patient for an item or service payable by the government, or for ordering or arranging for ordering any such item or service. "   If you send a FLYER to a non-patient, coupon, non-coupon advertising and that patient comes into the practice.. YOU HAVE KNOWINGLY AND WILLFULLY OFFERED TO SOLICIT IN ORDER TO RECEIVE Remuneration.. YOU got paid..the patient got solicited, and came into the practice. I SEE NOTHING CONFUSING THERE. In fact it's as PLAIN blue as the sky above.

There are MANY cases on file where PM companies have been involved in lawsuits for helping and aiding in physicians marketing services.. There are quite a few precedent cases on the books, just type in: PPM Company violates Anti-Kickback into Google. I did and found 7 cases on the first page alone. There are also OIG advisory opinions on PM companies offering marketing/referral services.

Quote
We can't even give them a free adjustment on their birthday.   Angry  What's the world coming to when you can't be nice, or kind, or even just charitable to someone who's having a hard time?

 
As for providing your client with a gift during holiday's ..totally separate thing and very easily solved, YOU can buy your provider a gift certificate for dinner, a gift basket, flowers, etc don't confuse client with patient.

As a billing company myself, I am ALWAYS finding my clients wanting to know "WHY" they can't do certain things. I explain it once, if it puts liability on me and they do it anyway despite my recommendation, they breach MY contract. It's even more frustrating being in the industry where you are educating OTHER billers and they still want to argue or debate the law.. They don't impose any liability on me, I just end up with a bump on my head from knocking my head against my desk.  If you don't' agree with law and want to violate it.. be my guest.  It is ok to NOT like it.. or advocate to change it. But to disregard it ..then you get what you deserve. Sorry that seems a bit harsh but it's true.
 

Title: Re: Anit-Kickback and Stark Law Question
Post by: medauthor on October 03, 2010, 03:30:54 PM
Isn't it funny how it's OK for us billing companies to charge a %, but considered dangerous for the doctors to enter into such an agreement with us......



For NY state



Is it a problem for a physician to employ a billing company or a collection agency?

That depends on the type of the agreement between the physician and the billing company. By default, many billing businesses prefer a contingency-based model where they charge the doctor a percentage of the doctor's income. While permissible for the billing companies, such practice is a sure way to professional discipline for the physician. The right way would be to arrange for a fixed rate representing fair market value of the services. However, this is different with the collections agencies. Paying collections agencies on a contingency basis depending on the amount recovered is not illegal fee-splitting.



Title: Re: Anit-Kickback and Stark Law Question
Post by: medauthor on October 03, 2010, 03:38:37 PM
California prohibits fee-splitting, however see below:

(b) The payment or receipt of consideration for services other than the referral of patients which is based on a percentage of gross revenue or similar type of contractual arrangement shall not be unlawful if the consideration is commensurate with the value of the services furnished or with the fair rental value of any premises or equipment leased or provided by the recipient to the payer.

So to me, it seems it is LEGAL to charge a % based on the services of 'billing'.
Title: Re: Anit-Kickback and Stark Law Question
Post by: PMRNC on October 04, 2010, 06:08:54 AM
(b) The payment or receipt of consideration for services other than the referral of patients   which is based on a percentage of gross revenue or similar type of contractual arrangement shall not be unlawful  if the consideration is commensurate with the value of the services furnished or with the fair rental value of any premises or equipment leased or provided by the recipient to the payer.

Depends on how you interpret this which is what makes THIS one very grey ..  how do you show your % commensurates with the value of services?   Since most charge a % of full revenue..to which revenue is brought in by patient's..   So when that's the case.. I like to go with the most safest solution... If in question.. better safe than sorry!
Title: Re: Anit-Kickback and Stark Law Question
Post by: Michele on October 04, 2010, 07:51:21 AM
"So...the holidays are coming up and we would really like to so something for our wonderful providers--and still stay legal.

What do you all do for your clients around the Christmas/Channukah/Winter Solstice/New Years season?"



For our local providers we usually do up a tray for the office, cheese, crackers, candy, fruit, cookies.  A variety of 'goodies'.  For our out of area providers usually a box of chocolates, or something else.  We also rate the office by size.  Our smaller offices, with less staff, get a smaller tray or smaller box of chocolates.  We have one Jewish provider and we send her a gift (mail order - cuz she's out of the area) at Channukah.

Title: Re: Anit-Kickback and Stark Law Question
Post by: PMRNC on October 05, 2010, 06:14:19 AM
I try to do something different each year. I might bring in lunch before the holiday's along with goodies for the staff as well as the provider. I give gift certificates to restaurants such as Red Lobster, Olive Garden, etc.  Only thing I don't do is Fruit Cake. LOL eww
Title: Re: Anit-Kickback and Stark Law Question
Post by: DMK on October 05, 2010, 10:12:05 AM
So what could the doctor do for his patients?  Just freebie advertising stuff?  Or the usual putting out coffee and cookies around the holidays. 
Title: Re: Anit-Kickback and Stark Law Question
Post by: PMRNC on October 05, 2010, 10:51:44 AM
If the provider wants to offer free/reduced services I would advise he discuss it with his legal counsel.. Putting out goodies is a good idea..but I hate being a stickler..I had a provider receive a citation from board of health for offering his patients donuts with the coffee.. go figure.. I thought that was ridiculous, he could put out coffee but not donuts? The board of health said it would be ok if the donuts/cookies were individually wrapped.. LOL  guess they think doc's might poison the patients?

As I stated before, I usually just tell my clients to talk to their lawyers when it comes to those questions because it's not within the scope of my services.
Title: Re: Anit-Kickback and Stark Law Question
Post by: midwifebiller on October 05, 2010, 08:18:47 PM
Thanks for the ideas on seasonal gifts!  I think chocolate and gift cards sound like a great idea.

Since the Anti-Kickback laws specifically state "for an item or service payable by the government", could that possibly mean providers that never bill Medicare or Medicaid are immune to all these restrictions-?
Title: Re: Anit-Kickback and Stark Law Question
Post by: DMK on October 06, 2010, 10:54:20 AM
I'm sitting here with my jaw hanging down.  Someone COMPLAINED to the health department over coffee and doughnuts?!  What is the world coming too?  I've evidently lived too long when the world comes to this, or I'm too old fashioned.  What is wrong with humanity and the legal system?  It seems like kindness has gone out the window. Too, too bad.
Title: Re: Anit-Kickback and Stark Law Question
Post by: PMRNC on October 06, 2010, 11:50:43 AM
Yup, it only takes one spoiler. I remember even when my kids were younger I could no longer bake cupcakes, I had to bring in something individually wrapped. Same idea I suppose. 
Off topic sort of.. I am buying each of my clients a Keurig to put in their offices or homes if they want, for the holiday's. I love mine and they are great because no waste plus complies with health code :)  www.keurig.com