# Professional Courtesy



## JCampbell (Dec 13, 2011)

Can someone help me with the rules and regulations of a professional courtesy? Does anyone have a policy that they would be willing to share regarding this?

Thanks for any help that you may be able to give!


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## mdoyle53 (Dec 13, 2011)

Policy that I have used and continue with clients is there is no professional courtesy.  You could provide a free service but once it is billed to an insurance carrier, the practice must work to collect the money.  Now it comes down to the collection policy and how it is enforced.

Stay away from PC as it is dangerous even though there are some avenues around it, but they are difficult and could lead you into trouble.


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## penguins11 (Dec 13, 2011)

We never extend professional courtesy unless the patient is financially needy.  If you extend professional courtesy to another doctor it would be kind of hard to document financial need.  There are too many if ands or buts as to when an why this would be illegal and be in violation of the Stark laws.  For example, if you routinely extend professional courtesy to one particular physician and he refers patients to you this could be construed as a Stark violation because the physician is more like to refer patients to a physician that writes off his own personal balances.  This is a very dangerous area so we make it a policy to never do this.  For written documentation on this search professional courtesy on OIG's website and you will find specific information devoted to this topic.


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## ajs (Dec 13, 2011)

JCampbell said:


> Can someone help me with the rules and regulations of a professional courtesy? Does anyone have a policy that they would be willing to share regarding this?
> 
> Thanks for any help that you may be able to give!



This article is found on the American Medical Association's website.  I posted it in another thread in response to a related question:

"Professional Courtesy in the Context of Health Care Fraud and Abuse

In response to the numerous questions the American Medical Association (AMA) receives on the appropriateness of professional courtesy, the AMA's Board of Trustees developed a report, Board of Trustees Report 18-A-98, that sets out the ethical underpinning to professional courtesy and discusses application of Medicare fraud and abuse authority where professional courtesy is provided. Key points from that report are presented here.

Background
Physicians have a long tradition of extending professional courtesy to their colleagues. In prior days, a decision to provide professional courtesy was strictly between the physician and his or her patients. However, today's legal climate means that a decision to provide professional courtesy is not a simple determination. In discussing professional courtesy, Current Opinions 6.13 and 6.12 from the AMA Council on Ethical and Judicial Affairs are instructive.

Ethical Opinion 6.13 - Professional courtesy. Professional courtesy refers to the provision of medical care to physician colleagues or their families free of charge or at a reduced rate. While professional courtesy is a long-standing tradition in the medical profession, it is not an ethical requirement. Physicians should use their own judgment in deciding whether to waive or reduce their fees when treating fellow physicians or their families. Physicians should be aware that accepting insurance payments while waiving patient copayments may violate Opinion 6.12.

Ethical Opinion 6.12 - Forgiveness or waiver of insurance copayments. Under the terms of many health insurance policies or programs, patients are made more conscious of the cost of their medical care through copayments. By imposing copayments for office visits and other medical services, insurers hope to discourage unnecessary health care. In some cases, financial hardship may deter patients from seeking necessary care if they would be responsible for a copayment for the care. Physicians commonly forgive or waive copayments to facilitate patient access to needed medical care. When a copayment is a barrier to needed care because of financial hardship, physicians should forgive or waive the copayment.

A number of clinics have advertised their willingness to provide detailed medical evaluations and accept the insurer's payment but waive the copayment for all patients. Cases have been reported in which some of these clinics have conducted excessive and unnecessary medical testing while certifying to insurers that the testing is medically necessary. Such fraudulent activity exacerbates the high cost of health care, is unethical, and violates Current Opinion 2.19. (Physicians should not provide, prescribe, or seek compensation for services that they know are unnecessary.)

Physicians should be aware that forgiveness or waiver of copayments may violate the policies of some insurers, both public and private; other insurers may permit forgiveness or waiver if they are aware of the reasons for the forgiveness or waiver. Routine forgiveness or waiver of copayments may constitute fraud under state and federal law. Physicians should ensure that their policies on copayments are consistent with applicable law and with the requirements of their agreements with insurers.

Clarifying the right to provide professional courtesy
The routine waiver of copayment has been construed as a fraudulent misrepresentation of physician charges against payers of all types. While the routine waiver of copayment should not be confused with the occasional grant of professional courtesy, physicians must be aware that laws designed to prevent fraud might have an effect on legitimate, even honorable, conduct. For example, physicians have often characterized professional courtesy as accepting whatever the insurance plan allows as payment in full. However, where the patient is a Medicare beneficiary, such an action would run afoul of the Medicare program.

Under traditional Medicare, physicians are paid 80 percent of the allowable amount: the lower of the payment schedule amount or the actual charge. In an instance where Medicare allows $100, the program pays $80 and the copayment amount is $20. A determination to only accept "what insurance pays" as payment in full could be seen as the physician having an actual charge of $80, and the resulting insurance payment should be $64.

Even extending professional courtesy through the promise of free care could be viewed as a violation of the federal anti-kickback law if there is a link between the care provided and subsequent referral of patients who are Medicare or Medicaid beneficiaries. Under this law, an illegal kickback occurs where there is a referral for a Medicare or Medicaid covered service as a result of the receipt of remuneration that influences the ordering or receipt of services from a particular practitioner or entity. One of the Health Insurance Portability and Accountability Act (HIPAA) amendments to the anti-kickback law expanded the definition of "remuneration" to include "waiver of coinsurance and deductible amounts (or any part thereof), and transfers of items or services for free or for other than fair market value." While the law allows exceptions for financial need, it is unlikely that financial need would be applicable in many cases of professional courtesy.

Physicians should exercise caution in extending professional courtesy where the patient may be in a position to make referrals. If the physician's intent behind extending professional courtesy is to generate referrals for Medicare or Medicaid covered services, the government will be in a position to prosecute a fraud or abuse case for a violation of the anti-kickback law.

Extensive research has failed to uncover any instance where a physician has been prosecuted by either the OIG or the DOJ for fraud or abuse based on the extension of professional courtesy. Furthermore, the OIG is unlikely to initiate a fraud or abuse investigation related to the traditional act of professional courtesy. On the other hand, prosecutions for the routine waiver of Medicare coinsurance have involved schemes to provide medically unnecessary services, and were not examples of professional courtesy."


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## dclark7 (Dec 14, 2011)

I just finished up some research on this subject for the company I work for and I had to produce a report.  See if this information helps you.

                                    Professional Courtesy Discounts

   Professional courtesy discounts may be considered inducements under The Federal False Claims Act (31 U.S.C. 3729), the Federal Antikickback Statute (42 U.S.C.13209a-7b), the Civil Monetary Penalties Law, Stark I and II, and the Health Insurance Privacy and Portability Act of 1997.  HIPPA extends the government’s jurisdiction to private insurance fraud in addition to federal programs.

Under the False Claim Act the government position is that physicians who waive fees by providing free or discounted services submit false claims because they misrepresent their actual charges.  In their 1994 Special Fraud Alert the OIG emphasizes that “routine” waiver of co-pay or deductibles equivalent to misstating the actual charge.  Section 5220 of the Medicare Carriers Manual advised Carriers to investigate physicians’ waiver of co-pays and deductibles where those waiver are provided routinely and consistently.

In their 1991 Special Fraud Alert the OIG stated that physicians who forgive financial obligations for reasons other than the genuine financial hardship of a particular patient without “good faith” attempts to collect applicable debts may violate the Antikickback Statute by unlawfully inducing patients to purchase items or services from them or physicians to refer business to them.

According to the Civil Monetary Penalties Law the waivers of co-pays and deductibles and the provision of free or discounted services for or to beneficiaries of Federal Healthcare programs is unlawful if the physicians know of should know that these actions are “likely to influence such individuals to seek the services of those physicians.  The only exception to this general rule is where 1) the waivers are not advertised, 2) the waivers are not routine, 3) there is a good faith effort to determine financial need or there are reasonable collection efforts made.  Financial need cannot be used routinely as a reason for providing discounts.
Stark II, Phase III allows the following exceptions for Professional Courtesy Discounts(§42 CFR 411.357 (s)):
            1)	Discounts must be offered to all physicians in the local community or service area without regard to whether they are referral sources.
            2)	The courtesy policy must be in writing
            3)	It may not be available to anyone who is a beneficiary of Medicare/Medicaid or   any other Federal Healthcare Program (ie your retired physicians who are on Medicare). And
            4)	If the courtesy involves any reduction of co-pay or deductible the insurer must be notified in writing of the reduction.

The AMA has weighed in on this issue with their Ethical Opinions 6.13, Professional Courtesy and 6.12, Waiver of Insurance Co-pay.  Both of these can be found on their website

 In the April 12, 1999 issue of Part B News Kevin McAnaney an attorney with HHS-OIG state that the government’s position is that “generally a routine practice by physicians of waiving the entire fee (emphasis mine) for services provided to other physicians without regard to potential referrals is not a problem.  However waivers of Medicare or other Federal Health programs copayments to indigent persons whether a physician or any other group are problematic.”

 In instances where professional courtesy discounts are given by waiving co-pays, co-insurance or deductibles for commercial insurers, these may be considered a breach of contract.  There are also some insurers with “most favored nation” clauses in their contracts.  This entitles them to pay the lowest charge that the physician bills to anyone.  A systematic pattern of discounts could trigger lower payments by the insurer under this clause.

 In general it seems from review of these regulations that “no charge” visits where the whole charge is written off may not be a problem (provided it does not appear to offer inducements for referrals); however, routine waivers of only the patient portion of the charge without assessing for financial need would place the provider at risk under any or all of these regulations


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## FTessaBartels (Dec 14, 2011)

*No Professional Courtesy*

It is our practice policy to NOT extend professional courtesy for any reason to anybody.  Our own employees (staff and physicians) must pay co-pays and deductibles per insurance contract. 

We have clearly outlined policies on financial hardship allowances, but that is NOT professional courtesy.  

The key is to have a policy in writing, and apply it uniformly across the board to all patients. 

Hope that helps.

F Tessa Bartels, CPC, CEMC


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