Medicare Compliance & Reimbursement

Hint: Expect scrutiny to ramp up post-COVID.

If you didn’t have speaker fees on your fraud-and-abuse bingo card, you might want to add them. A recent case raises kickback concerns over this common practice and is sure to be on the feds’ watchlist in the coming months.

Context: An HHS Office of Inspector General (OIG) Special Fraud Alert issued Nov. 16 “highlights the fraud and abuse risks associated with the offer, payment, solicitation, or receipt of remuneration relating to speaker programs,” it says. “Speaker programs are generally defined as company-sponsored events at which a physician or other health care professional (collectively, ‘HCP’) makes a speech or presentation to other HCPs about a drug or device product or a disease state on behalf of the company. The company generally pays the speaker HCP an honorarium, and often pays remuneration (for example, free meals) to the attendees.”

Feds Suggest Some Are More Prone to Fraud Than Others

Speakers are more prevalent in some parts of the healthcare industry than others, and those groups racked up big numbers, indicates the Alert. In fact, the agency notes that drug and device companies paid HCPs over $2 billion in the last three years for speaking engagements.

The practice is big in drug companies, points out attorney Robert Markette with Hall Render in Indianapolis. The OIG also singles out medical device companies in its Alert.

The home healthcare industry may be an OIG target, too. Home care providers engage in this also, maintains home health financial expert Tom Boyd, CEO of Aftercare Nursing Services. This is “seen often where MDs [are] paid to do in-services for staff or ‘community,’” Boyd says.

“Our investigations have revealed that, often, HCPs receive generous compensation to speak at programs offered under circumstances that are not conducive to learning or to speak to audience members who have no legitimate reason to attend,” the OIG says in the Alert. “Such cases strongly suggest that one purpose of the remuneration to the HCP speaker and attendees is to induce or reward referrals.”

Conclusion: “This remuneration to HCPs may skew their clinical decision making in favor of their own and the company’s financial interests, rather than the patient’s best interests,” the OIG says.

Warning: “Parties involved in speaker programs may be subject to increased scrutiny,” the OIG says. That includes the companies paying, the speakers, and the attendees, the agency stresses.

Red flags that indicate a speaking event may be violating the anti-kickback statute include inclusion of alcohol, especially if it’s free; meals that exceed a “modest value;” speakers or attendees who repeat topics; “the company’s sales or marketing business units influence the selection of speakers;” referrals generated influence speaker selection; and payment that is higher than fair market value for the speaker.

The OIG does acknowledge that such speaking events have decreased under COVID. But “the risks associated with speaker programs will become more pronounced if companies resume in-person speaker programs or increase speaker program-related remuneration to HCPs,” the watchdog agency says.

Resource: See the alert at www.oig.hhs.gov/fraud/docs/alertsandbulletins/2020/SpecialFraudAlertSpeakerPrograms.pdf.