Often, health care providers do not even realize how marketing arrangements can violate the Anti-Kickback Statute and other state marketing/brokering laws. It is completely natural for health care providers to market; they need to get business and establish referral relationships with other practitioners. With this, health care professionals often rely on marketing companies, MSOs (management services organization), pharmaceutical companies, or referral entities that represent that an agreement is compliant with such statutes a provider will not have checked by an attorney.
A Marketing/Brokering/Anti-Kickback compliance risk assessment is designed to help health care professionals identify potentially problematic non-compliant relationships before they agree to them. Examples of problematic relationships can include: (1) referral relationships; (2) co-management agreements; (3) leasing/subleasing office space; (4) discount/rebate programs; (5) lead generation services/recruitment agreements; (6) call centers; (7) management services organizations agreements; (8) medical director agreements; (9) marketing agreements; (10) medical equipment leases; (11) waivers of co-pays and deductibles without financial hardship; (12) pharmaceutical companies/sales representative relationship; and (13) supervising physician agreements.
Many times, health care professionals do not realize they are agreeing to a deal that can be potentially problematic and are told otherwise. A risk analysis can help to identify potentially problematic marketing and referral business relationships that could violate one of these statutes. It is vital to identify situations where you may need to consult with legal counsel in your state or area. Many times, these laws or statutes are criminal statutes that carry heavy penalties, including fines, damages, and mandatory refunds. Other potential repercussions include exclusion from the federal Medicare and state Medicaid programs as well as termination of third-party payor and managed care contracts. Violations can also result in professional licensure disciplinary actions, peer review investigations and disciplinary action at facilities, Health care professionals and providers need to identify potentially problematic business relationships and either avoid entering into them or restructure them before signing an agreement or contract. A Marketing/Brokering/Anti-Kickback assessment can help you do just that, so that they can operate in a compliant manner.
While percentage-based compensation arrangements are often legal and abundant in other industries, they are not in health care. Federal regulators and most state regulators consider percentage-based marketing compensation agreements to be per se illegal, but physicians and providers do not know this and do not know what they don’t know. It is important to understand that groups such as marketing companies, pharmaceutical companies, and other referral entities often overlook the federal Anti-Kickback Statute and other state marketing/brokering regulations.
Completing a Marketing/Brokering/Anti-Kickback compliance risk assessment for your business or practice cannot only help you identify and address potential gaps in your marketing and management agreements and referral and business relationships, but also help you conduct referrals more compliantly.
For more information on the Halos Marketing/Brokering/Anti-Kickback compliance risk sub-assessment please visit our website at halos4health.com or email us at info@halos4health.com.
Authors:
Michael R. Lowe is a board-certified health care attorney with 28 years of experience in health care law/litigation, medical malpractice, and compliance. Brian Evander is a health care attorney with 15 years of experience in health care law, medical malpractice, civil litigation, and complex business litigation. Jacob Lowe is a programming specialist for Halos who helped program and design the comprehensive module and submodules.
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