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Marketing free services legal?

April 26, 2016


Question:

Jennifer,

I was curious as to how big medical and dental groups constantly advertise "Free Exams and X-Rays" or a chiro group advertising free massage when most everyone knows about the Stark laws and the penalties for inducements.  How are they getting away with this?

Can you shed some light on this?

Dr. C

Answer:

Oh boy!  This one really burns, I know.  The thing is, a lot of practitioners don't mind until it matters, and it often doesn't matter until the feds are literally knocking on their door.  Here, unless you're giving away free stuff to Medicare or Medicaid recipients, to induce them to get more services from you that are reimbursable by federal funds, well, then the feds are mostly not interested.  That is, unless you really peeve someone off and the Attorney General takes an interest in you.  Other offenses that are racked up for non-federally funded payors - private payors, self-funded plans - have internal fraud units, and those inquiries are often handled internally by the payor and boil down to dollars and cents if the payor thinks they have somehow been swindled.  

I'm not sure exactly which offerings or inducements you are talking about, but many I have seen advertised or have worked to advise on are for "inducements" that are not reimbursable by insurance, for instance, free massage by a DC's office by a licensed massage therapist.  Here, a lot of states, like NY, have laws against offering any inducements to patients for other services.  So, a zero tolerance policy for "kickbacks".  But, there is no money in it, really, for taking down the DC, because the offering runs afoul of NYS Education Law - and the punishment is with the OPMC, licensure bureau.  That department has tons of complaints it is mandated to investigate, so while it can make its own inquiry, and does (Groupon was a hot topic for a while), it doesn't have the resources to check out each inducement out there.  And, many patients are not reporting for free stuff. 

So, we are left, as we often are with a black hole of enforcement.  With that hole sometimes comes a fill.  No doubt in NY and other states it is not kosher to offer inducements to patients.  Medicare rules allow nothing to patients as a gift over $10 or $50 total annually - so, watch those lollipops and sanitizers for your weekly regulars!  

So, to answer the question - some risk it for the biscuit. 

 


 
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Looking for HIPAA and compliance forms?  
Click here to visit our website.
Have a question or comment for Jennifer?
Contact Jennifer at Jennifer@Kirschenbaumesq.com or  at (516) 747-6700 x. 302.
Interested in having Jennifer speak at an event or
at a residency/fellowship program?
Contact Jennifer directly at (516) 747-6700 x. 302 or at Jennifer@Kirschenbaumesq.com
Click here to learn about
K&K's Prepaid Legal Audit/Investigation Defense Now!