OIG Targeting Physician Agreements Again
The Office of Inspector General (OIG) of the U.S. Department of Health and Human Services issued a Special Fraud Alert on November 16, 2020, that addresses speaker programs for physicians. Providers that don’t have speaker programs for physicians should, nonetheless, take note of this Special Fraud Alert because it is yet another indication that the OIG is targeting providers’ relationships and activities with referring physicians for enforcement action. Providers other than physicians that make referrals, such as case managers/discharge planners, should also take note of this Special Fraud Alert because it specifies some activities that are unacceptable.
First, the OIG describes speaker programs as provider-sponsored events at which physicians and other health care professionals make speeches or presentations about providers’ services. Providers usually pay speakers an honorarium and often pay remuneration, such as free meals, to attendees.
The OIG says that it has investigated and resolved numerous cases involving speaker programs that violate the anti-kickback statute. These criminal and civil cases involved allegations that providers:
˗ Selected physicians who refer numerous patients to be speakers and rewarded them with lucrative speakers’ fees that sometimes amounted to hundreds of thousands of dollars
˗ Conditioned speaker fees on numbers of referrals, i.e., physicians were required to make a minimum number of referrals in order to receive speakers’ fees
˗ Held speaker programs at entertainment venues or during recreational events that aren’t conducive to educational presentations; such as wineries, sports stadiums, fishing trips, and golf clubs
˗ Held programs at expensive restaurants where meals and alcohol were served
˗ Invited physicians who previously attended the same program; or physicians’ friends, significant others, or family members who did not have a legitimate business reason to attend programs.
The OIG went on to say that there are many other ways for physicians and other practitioners to obtain information about providers’ services and products that do not involve speakers’ fees. Physicians may, for example, access similar information using online resources, attendance at third-party educational conferences, reading articles, etc.
The OIG emphasizes that everyone involved in speakers’ programs may be subjected to enforcement action, including providers who present programs, providers who are paid to speak and attendees.
The OIG also provided an illustrative list of suspect characteristics of speakers’ programs that may not pass muster:
˗ Providers sponsor speaker programs during which little or no substantive information is actually presented
˗ Alcohol is available or meals exceeding modest values are provided to attendees, especially when the alcohol is free
˗ Programs are held in locations that are not conducive to exchanges of educational information; such as restaurants, or entertainment or sports venues
˗ Providers sponsor a large number of programs on the same or substantially the same topic, especially in situations involving no recent substantive changes to relevant information
˗ There has been a significant period of time with no new clinical or regulatory information on topics presented
˗ Physicians attend programs on the same or substantially the same topics more than once as either repeat attendees or as attendees after being speakers on the same topic
˗ Attendees include individuals who don’t have a legitimate business reason to attend the program; including friends, family, employees, or practitioners who are members of speakers’ practices and other individuals with no use for the information presented
˗ Providers’ sales or marketing staff influence selection of speakers/attendees, or speakers are selected based on past or expected revenue that speakers/attendees have or will generate
˗ Providers pay speakers more than fair market value for speaking services, or pay compensation that takes into account the volume or value of past business generated or future business that may be generated.
The OIG has once again indicated that enforcement related to relationships with physicians is serious business. All providers must examine their practices to help ensure compliance, including Agreements with Medical Directors.
Elizabeth E. Hogue, Esq.
Elizabeth E. Hogue, Esq.
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