The holidays are here; I love this time of year—it’s a time for reflection, for feeling grateful, and for giving gifts. As you create your gift-giving list, you may find yourself adding friends who also are your peers. Unfortunately, a problem can arise when you give a gift to someone who has the ability to refer patients to you, because you could inadvertently violate the Anti-Kickback Statute (AKS).

This is a good place for me to insert my disclaimer: I am not a lawyer, and I did not sleep in a hotel that made me smarter last night. The federal AKS is extremely complicated, and if you have any questions about whether you are doing something that may potentially violate it, you should seek expert advice. Lastly, many states have their own AKS documents. In this blog post, I’ll only discuss the federal AKS.

Compliance Quest: 7 Medicare Muck-Ups and How to Fix Them - Regular BannerCompliance Quest: 7 Medicare Muck-Ups and How to Fix Them - Small Banner

What does the federal AKS say?

The AKS makes it a criminal offense to willfully offer, pay, solicit, or receive any remuneration to induce or reward referrals of items or services reimbursable by a federal healthcare program. The term “remuneration” is defined as “anything of value, in whatever form.”

Now, you might be thinking to yourself: “Wow, that is pretty broad!” Hopefully, you’re beginning to get my point about needing an expert opinion when it comes to the AKS.

The law can be so broadly interpreted to include things like giving gift cards to patients for referring a friend who is a beneficiary in a federally funded healthcare program and giving gifts to physicians who refer patients to your practice. All of a sudden, that fruit basket can take on a whole new meaning.

I have talked with therapists who’ve said: “The AKS does not apply in the state where I practice.” But remember, even though your state may not have its own AKS, the federal AKS applies everywhere federally funded healthcare programs are used.

I’ve also talked with therapists who’ve said: “Dr. Smith and I are good friends, so we like to go out to dinner several times a year.” A couple of points to make here: First, if Dr. Smith is in a position to refer patients to your practice, the AKS would still most likely apply. Second, if you and Dr. Smith are friends, I would expect Dr. Smith would sometimes pay for dinner, too. If you’re always paying for dinner with Dr. Smith, you could have difficulty proving the dinners were between genuine friends.

What’s your risk tolerance?

That’s the key question when it comes to these types of situations. Some folks have a very small risk tolerance, while others have a higher one. If, like me, you believe in the “trickle-down theory of healthcare compliance,” you can see how the enforcement of these rules has gotten stricter over the years. It always starts with the larger organizations. Case in point: two years ago, Glaxo Smith Kline settled a false claim case with the federal government that involved its marketing practices with physicians. The price tag? A cool $3 billion. No, that’s not a typo; I said “billion.” And as you may have noticed, in the months since that settlement, drug reps have been very careful about their marketing practices. They also now must keep a record of how much they spend on marketing to physicians. Personally, I’ve noticed that physicians have become very uncomfortable when gifts arrive at their offices, because they now have a heightened sense of their responsibility when they receive a gift from someone to whom they make referrals.

So again, when it comes to gifting, I would pose the question: is the risk of the reputational, financial, and professional harm worth providing a gift to those who refer to your practice?

What can you do?

The safest advice I can give is to shelve the gift ideas this holiday season, and express your gratitude in a different way. I recommend writing a letter to those physicians who refer to your practice. Tell them how much you appreciate being able to participate in the care of their patients. Provide specific examples of how their patients benefitted from coming to you. Or better yet, include a thank-you note from one of those patients that explains how much PT has benefited him or her. Everyone likes to be thanked for doing a good job. More importantly, all healthcare professionals like to have their decisions regarding patient care validated.

Thank you very much for the opportunity to address this important—and timely—topic. Happy holidays!

  • What PTs Must Know About Holiday Gift-Giving Image

    articleDec 22, 2015 | 3 min. read

    What PTs Must Know About Holiday Gift-Giving

    It’s December, which means the holidays are here—and this typically is the time of year that our thoughts turn to gift-giving. We’ve talked about this before, but I thought this would be a good opportunity to remind you of a few considerations to keep in mind as you give gifts to employees, patients, referring physicians, and other providers. As we’ve discussed in the past , when giving gifts to referral sources, the primary area of concern is …

  • The PT’s Guide to Surviving a Medicare Audit Image

    articleMay 30, 2016 | 5 min. read

    The PT’s Guide to Surviving a Medicare Audit

    “How can I avoid being audited by Medicare?” This is one of the compliance questions I hear most frequently, and the honest answer is, quite simply, that you can’t. Just because CMS or one of its auditing entities hasn’t come knocking on your door doesn’t mean you’re not being audited. In fact, every claim you submit undergoes statistical analysis, and Medicare compares your claims data to the data for all other claims submitted. Furthermore, Medicare now analyzes …

  • articleMar 7, 2013 | 5 min. read

    Medicare 8-Minute Rule: So Simple Yet Diabolically Complicated

    Today's post comes from Tom Ambury, PT and compliance officer at  PT Compliance Group . Thanks, Tom! “Tom, how can you make a statement that the Medicare 8-minute rule is simple yet diabolically complicated?” I can make that statement because even though this rule has been in effect for years—and thus, people should have the hang of it—mistakes still happen. And when I talk to therapists about it, a lot of confusion still exists. The 8-minute rule …

  • The Legality of Performance-Based Employee Incentive Programs in Rehab Therapy Practices Image

    articleJan 14, 2016 | 3 min. read

    The Legality of Performance-Based Employee Incentive Programs in Rehab Therapy Practices

    The concept of pay-for-performance (PFP)—that is, the idea that an individual receives payment based on what he or she produces—seems very American to me and is certainly part of our capitalistic society. To use a sports analogy, a professional athlete who is one of the top performers in his or her sport commands higher compensation than an average or poor performer. So, why would therapy practice owners, directors, and executives not consider offering salary/compensation rates based on …

  • articleAug 13, 2012 | 3 min. read

    A PT’s Guide to the Therapy Cap

    Today’s blog post comes from PT and compliance guru Rick Gawenda , founder and President of Gawenda Seminars and Consulting, Inc .  The Middle Class Tax Relief and Job Creation Act of 2012 (HR3630) impacted physical therapists in private practice in terms of the Medicare therapy cap. First and foremost, HR3630 extended the therapy cap exception process through the 2012 calendar year. Secondly, it requires that the Centers for Medicare and Medicaid Services (CMS) apply the therapy …

  • articleMay 21, 2013 | 4 min. read

    4 Key Things You Should Know About the MPPR Changes

    Today’s blog post comes from Chuck Felder, PT, DPT, SCS, MBA. For follow-up questions, please email Chuck at . 1.)    What? In 2012, CMS began a process of reducing payment for therapy services based on multiple procedures performed during the same visit. This is termed the Multiple Procedure Payment Reduction (MPPR).  Despite APTA’s and others best efforts to get this removed, CMS began a 20% reduction policy on the second and subsequent procedure each day. This …

  • articleFeb 20, 2013 | 4 min. read

    Medicare Issues Facing Cash-Based PTs

    Today’s blog post comes from  Ann Wendel ,  PT.  Ann is the owner of  PranaPT , a member of WebPT, and an active social media participant (@PranaPT). Thanks, Ann! Grab a cup of coffee (or a stiff drink) because we’re going to talk about Medicare. Currently, there are two issues that we as physical therapists need to be aware of because they affect how we treat patients on a daily basis. First, it is vital for all …

  • articleJun 27, 2013 | 6 min. read

    Functional Limitation Reporting and You: What You Need to Know

    Wow, can July 1 really be right around the corner? Seems like yesterday we were only finding out about the requirement to document and report functional limitation G-codes and severity/complexity modifiers, and I think it really was only yesterday that CMS figured out how they would work. Let me start by making sure you understand that functional limitation reporting (FLR) and PQRS are separate and distinct programs and that each program has its own set of codes …

  • Functional Outcome Measures Image

    articleNov 28, 2012 | 5 min. read

    Functional Outcome Measures

    Today's post comes from Tom Ambury, PT and compliance officer at  PT Compliance Group , based off this month’s “Compliance Chat” blog post . By now, I hope most of you are using functional outcome measures. If you haven’t started yet, you might want to consider taking the next few weeks to get prepared and begin the process in January of 2013. Why? Let’s start with the fact that physical therapy documentation is coming under greater scrutiny …

Achieve greatness in practice with the ultimate EMR for PTs, OTs, and SLPs.