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.
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!