Home Health & Hospice Week

Do you know the difference between a holiday gift and a kickback? 

'Tis the season for merry-making and gift-giving, but your holidays won't be so merry if the feds interpret that gift basket you sent to the local physician as a ploy to encourage referrals.

The anti-kickback statute makes it a crime for a health care provider to give anything to a referral source if even part of the reason for the exchange is to induce referrals. And since it's just as illegal to accept a kickback as it is to offer one, you must be careful what you receive as well as what you give. While modest tokens generally are fine, extravagant gifts send up red flags, experts agree.

And this year providers have more to consider than ever, since the HHS Office of Inspector General has published guidelines for relationships between providers and pharmaceutical and device companies, points out consultant Jim Collins, president of CompliantMD in Matthews, NC. Additionally, the Pharmaceutical Researchers and Manufacturers of America (PhRMA) and Adva-Med have released similar codes of conduct.

Under these codes, gifts from device manufacturers and drug companies to health care providers are appropriate only if (1) the gift benefits patients (such as educational videos) or (2) the gift benefits the provider's practice (such as pens, textbooks, etc.), notes attorney Robert Wanerman with Reed Smith in Washington.

It is not appropriate to give or receive gifts that are of personal benefit to the health care provider, such as golf balls, shirts or tickets to concerts, sporting events or the theater, Wanerman continues. Also, "cash or cash equivalents (such as gift certificates) are never acceptable," he warns.

When it comes to giving gifts to referral sources, moderation is key, experts agree. There is no hard-and-fast limit to what is considered acceptable, but you should be in the clear if you use common sense. Simply ask yourself if a reasonable person would consider the gift to be an inducement for referrals, instructs attorney David Glaser with Fredrikson & Byron in Minneapolis. "A box of nuts is not going to convince a physician, 'I need to refer to you so I can get these nuts every year!'" Glaser quips. On the other hand, throwing the practice's annual holiday party could, he points out.

Also carefully consider how you chose the recipients of gifts, urges attorney Robert Markette with Gilliland & Caudill in Indianapolis. You should have a rationale based on something other than whether the person is a referral source, he insists.

The physician self-referral law (a.k.a, the Stark law) is another source of concern where gifts to referral sources are concerned. If you give more than $350 to a physician in a year, you no longer are allowed to accept referrals from the physician for designated health services under Stark. Stark isn't a criminal statute, so falling outside its boundaries won't land you in jail - "but with a fine of up to $15,000 per claim, it's plenty to keep one's attention," Glaser points out.

"The bottom line here is that any extravagant gift runs a serious risk of being perceived as a kickback if there is any business between the parties that is reimbursable under Medicare or Medicaid," Wanerman insists. "Doing something that uses creativity to get someone's attention is fine, but doing something that uses the value of the gift to woo them is illegal," Glaser concludes.