In your responses, agree or disagree with the original poster’s recommended policy changes and explain position. What suggestions do you have to improve the effectiveness of the original poster’s recommendations?

Post #1 :

Maureen Calnan posted Oct 12, 2020 4:01 PMSubscribe

For any physician, it is vital to have an understanding of federal fraud and abuse laws  The laws that apply to physicians include the False Claims Act (FCA), the Anti-Kickback Statute (AKS), the Physician Self-Referral Law (Stark law), the Exclusion Authorities, and the Civil Monetary Penalties Law (CMPL).  Violation of any of these laws could result in criminal penalties, civil/monetary fines, exclusion from the Federal health care programs, and/or revocation of the physician’s medical license (DHHS, n.d.).  The situation outlined here has the potential appearance of a kick-back scheme and my open Dr. Stevens as well as the primary care physicians to civil or criminal penalties or even loss of their license.  A kick-back is payment to someone for facilitating a beneficial relationship or transaction.  There is even potential for these actions to constitute fraud if the referrals are not for patients with a legitimate need for the services of Dr. Stevens.  The situation with Dr. Stevens also could represent a conflict of interest and could be subject to conflict-of-interest disclosure policies, even if the relationships between Dr. Stevens and the PCPs are not illegal.

• As head of risk management for the medical group that employs Dr. Stevens, I would take an objective look at the situation to determine whether there were kickbacks, fraud, or a conflict of interest involved.  In order to obtain the additional information needed to determine if there is a legal risk to Dr. Stevens, the medical group, or the hospital, I would ask the following questions:
  • Do you give Christmas gifts to all physicians who refer patients to you or just certain ones?  If it is only certain ones, how do you determine to whom you give gifts?
  • What percentage of your business comes through referrals from these physicians?
  • To your knowledge, do these physicians refer patients to other orthopedic surgeons, or just to you?
  • What is the value of the gifts?  Are they token gifts such as a box of chocolates or are they pricy, extravagant gifts like vacations or expensive jewelry?
  • Have you ever performed – or has a patient ever accused you of performing- surgeries or procedures that were unnecessary or more extensive than required?  

The answers to these questions can help determine whether the Christmas gifts are simply small tokens of appreciation for a colleague or if they represent a conflict of interest, a kick-back, or even fraud.  I would also advise the providers in the practice to consider these questions whenever they consider giving a gift to a colleague.  In addition, I would tell them that if they ever find themselves questioning their actions, they should reach out to the legal team for advice.  I would also tell them that if they are ever uncertain about whether their actions represent a conflict, they should ask someone.  They could also use the “newspaper test” – if they would not  want the arrangement to appear on the front page of the newspaper, there is likely a conflict.

Reference

U. S. Department of Health and Human Services: Office of the Inspector General (n.d.).  A Roadmap for New Physicians: Avoiding Medicare and Medicaid Fraud and Abuse. https://oig.hhs.gov/compliance/physician-education/roadmap_web_version.pdf

Post #2 :

Rachel Watson posted Oct 12, 2020 8:08 PMSubscribe

Providers who agree to participate in government-funded healthcare programs, such as Medicaid and Medicare must agree to and follow many regulations and policies set in place to provide care and receive reimbursement for care. As head of risk management recently learning about the actions of Dr. Stevens and gift giving behaviors, my first thought is quid pro quo and Stark Law. Federal regulations through the Anti-kickback Statute prohibits giving or receiving of gifts in exchange for referrals; however, some exceptions are allowed (Fremgen, 2016). Gifts of reasonable value are typically allowed, yet not strict definition of ‘reasonable’ is found. Under Stark Law, or the physician self-referral law, referrals are prohibited between providers in which a financial relationship is established and unfortunately in this case, giving and receiving gifts can be considered as a financial relationship. A limited exception of up to approximately $300 per calendar year in unsolicited nonmonetary gifts is permitted given the gift does not violate the anti-kickback statute (Fremgen, 2016). Either way, this situation warrants more research, investigation and questions to be answered. 

Some of the questions I would like to have answers to are as follows:

• What is the monetary value of the gifts being given? And are their gifts being received by Dr. Stevens as well?
• What is the correlation between providers receiving gifts and the number of referrals sent to Dr. Stevens? Statistically, are more referrals being received by providers receiving gifts?
• What is the amount of referrals the gift receiving providers are referring to other providers besides Dr. Stevens?
• Why send gifts to certain providers and not all?
• I would also speak with the gift receiving providers and inquire whether Dr. Stevens has offered any other form of cohersion to obtain referrals. 

For future office procedures, I would recommend instilling a no-gift policy across the board. This will eliminate any opportunities or perceptions of quid pro quo or favoritism and abolish gifts to create lawful or ethical disputes for the organization. The exception to this policy would be organization or office holiday parties in which a strict gift-giving amount is pre-determined and set and participation is completely voluntary. If any questions or concerns are raised regarding the policy, all communication is directed to the organization legal department to decipher legalities of potential issues or conflicts.

References

Fremgen, B. F. (2016). Medical law and ethics (5th ed.). Pearson.