Legal Marketing Is A Must!
The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services, the primary enforcer of fraud and abuse prohibitions, has repeatedly announced that “patient recruiters,” or marketing representatives, have been convicted of fraud and are on their way to jail. The OIG announced, for example, that a marketing representative in the Detroit area was sentenced to twenty-seven months of jail time and required to pay restitution in the whopping amount of $10,765,325!
Recent cases bring home once again the importance of making sure that marketing representatives of home health agencies, hospices, HME companies, and private duty companies understand what is legal and what is not with regard to getting referrals. The stakes are extremely high.
Court decisions and a federal statute make it clear that billing for referrals that were obtained in impermissible ways are false claims. That is, if marketing representatives use inappropriate means to get referrals and post-acute providers bill for services provided to such patients, then the claims submitted are false claims. The penalties for submissions of false claims may include:
- Fines or civil money penalties that are three times the amount of the claims involved;
- Jail time; and
- Suspension or exclusion from participation in the Medicare, Medicaid, and other state and federal health care Programs.
But what if owners did not know what the marketing representatives were doing? Providers need to know that court decisions say that enforcers may conclude that providers had intent if they can prove that providers knew or should have known of a pattern of fraudulent conduct. This means that managers of post-acute providers must remain vigilant and constantly monitor the activities of marketing representatives to be sure that they don’t cross the line.
From a practical point of view, providers should take the following actions:
- Develop and implement a policy and procedure that says that marketing representatives may not engage in new types of marketing activities without the advance written permission of appropriate managers.
- Provide initial and periodic training to marketing representatives regarding regulation of marketing practices, including, at a minimum:
- The Federal anti-kickback statutes;
- The Federal False Claims Act;
- The so-called “Stark laws” and regulations; and
- Any applicable state statutes.
There are few checks on marketing representatives’ activities, especially when, as a result of their efforts, they receive incentives based on the number of admitted patients they refer. Management is responsible for the oversight of these activities. The possible consequences described above make the necessity of vigilance quite clear.
Elizabeth E. Hogue, Esq.
© 2020 Elizabeth E. Hogue, Esq. All rights reserved.
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