Home Health & Hospice Week

Educating your marketers is key to compliance, legal experts says.

Home care providers that fail to protect themselves against kickback violations are courting disaster.

Providers accused of kickbacks can face charges under a wide range of laws, all at the same time. "Penalties for violations of the law are severe and can accumulate from a variety of statutes, not merely the anti-kickback statute," warns attorney Marie Berliner with Lambeth & Berliner in Austin, TX.

The kickback case against Rebecca Sharp and her companies as painted by the Department of Justice is very black and white. But most unintentional kickback violations arise from gray areas in kickback law or just plain carelessness.

Follow these tips from the experts to safeguard yourself against kickback charges:

1. Watch out for red flags. Whenever someone proposes any sort of payment for referrals, red flags should pop up immediately, stresses attorney Robert Markette with Gilliland & Caudill in Indianapolis. Although there sometimes are ways to structure legal payments for referral-generating services, HHAs' gut reaction should be to say no to money-for-referrals schemes.

"In a highly competitive market with reimbursement systems that require a certain volume of referrals in order to be profitable, the temptation to do things that are inappropriate or illegal is very great," acknowledges Burtonsville, MD-based health care attorney Elizabeth Hogue. But agencies should resist for their own good. "Anything that even looks like [a payment for a referral] is definitely going to get providers into trouble," she warns.

Another red flag is an offer to have physicians certify patients for home care. "Just run the other way," Markette urges.

2. Educate your marketers. "Staff members, especially marketers, coordinators and liaisons, need lots of very specific education about referral issues," Hogue advises. "Marketing staff members have not usually received the education they need in order to avoid legal pitfalls," Hogue tells Eli.

Practices that are perfectly fine in other business areas are fraud and abuse under Medicare law, Markette warns. One example is pricey holiday gifts for referral sources.

3. Monitor your marketers. It's not enough to just tell your marketers what they should and shouldn't do ...quot; check up to make sure they really do or do not do it. "Agencies should be particularly vigilant in monitoring their relationships with referral sources and marketing personnel," Berliner counsels.

Marketers "are sometimes out in the field doing all sorts of things that management doesn't even know about, much less condone," Hogue cautions.

4. Conduct claims audits. Perform periodic internal claims reviews to ensure they are complying with the law, Berliner suggests. And make sure your claims and staff are complying with your own compliance plan as well.

 5. Fit into a safe harbor. Make sure any marketing relationship fits into a safe harbor in the anti-kickback statute, Markette advises.

Note: For a copy of the Anti-Kickback Statute safe harbor provision for referral services, email executive editor Rebecca Johnson at rebeccaj@eliresearch.com with "Safe Harbor Provision" in the subject line.