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Ok, what if I did "split fees" with an online marketer? Now what?

March 15, 2013

Question:

Jennifer,

I read yesterday's email where Dr. F asked if it was illegal to utilize an online marketing service that is taking a percentage of the service sold, per voucher. If I did that a few months ago, now what happens? Do I have exposure?

Thanks,

Dr. P

Answer:

Without knowing all the facts, and answering this inquiry solely based on the assumption that you practice in New York State and signed a contract providing that a company will take as its fee a percentage of the cost of a specific healthcare service offered in NYS, i.e., dental cleaning, botox, laser hair removal, chiropractic massage, fungus treatment, etc., etc., the answer is YES, you would absolutely be in violation of NYS Fee Splitting Prohibition pursuant to NYS Education Law 6530, which provides it is professional misconduct "and any licensee found guilty of such misconduct...shall be subject to penalties as prescribed in section [230-a] of the public health law...", including:

19. Permitting any person to share in the fees for professional services, other than: a partner, employee, associate in a professional firm or corporation, professional subcontractor or consultant authorized to practice medicine, or a legally authorized trainee practicing under the supervision of a licensee. This prohibition shall include any arrangement or agreement whereby the amount received in payment for furnishing space, facilities, equipment or personnel services used by a licensee constitutes a percentage of, or is otherwise dependent upon, the income or receipts of the licensee from such practice, except as otherwise provided by law with respect to a facility licensed pursuant to article twenty-eight of the public health law or article thirteen of the mental hygiene law;

So now what? Well, this lends to a "if a tree falls in the forest analysis"... Should OPMC or OPD (depending on your licensure) become aware of the illegal fee split, you may receive an inquiry or charges that must be responded to. Be advised if you are contacted by a licensing agency, or any other government agency for that matter, do not engage with that agency under any circumstance. Contact a healthcare attorney immediately! (This is why we offer KK PLAN, so you know who to call and what you will be paying.) The investigations I have been involved with related to this issue have so far been resolved without much incident. We have been successful in resolving any inquiry with explaining corrective action and mitigating potential exposure. Should licensure elect to prosecute more aggressively, or should during an inquiry into a practitioner uncover more than the fee splitting issue, it is important to understand the potential ramifications. OPMC and/or OPD have enormous authority and may inquire essentially every/any area of your practice to ensure compliance in all areas of practice. With that amount of latitude, it is imperative to work with competent counsel from the start of any inquiry to mitigate exposure. Should charges ensue, and should you be sanctioned or penalties sought, licensure has the authority to suspend or even revoke your license. For frame of reference, pursuant to section 230-a of the Public Health Law:

Penalties for professional misconduct. The penalties which may be imposed by the state board for professional medical conduct on a present or former licensee found guilty of professional misconduct under the definitions and proceedings prescribed in section two hundred thirty of this title and sections sixty-five hundred thirty and sixty- five hundred thirty-one of the education law are:

1. Censure and reprimand;

2. Suspension of license,

(a) wholly, for a fixed period of time;

(b) wholly, except to the limited extent required for the licensee to successfully complete a course of retraining;

(c) wholly, until the licensee successfully completes a course of therapy or treatment prescribed by the board;

(d) wholly, until the licensee completes rehabilitation to the satisfaction of the board;

(e) wholly, until the licensee complies with the terms or conditions of a board order;

(f) partially, until the licensee successfully completes a course of retraining in the area to which the suspension applies;

(g) partially, for a specified period or until the licensee complies with the terms or conditions of a board order;

3. Limitation of the license to a specified area or type of practice;

4. Revocation of license;

5. Annulment of license or registration;

6. Limitation on registration or issuance of any further license;

7. A fine not to exceed ten thousand dollars upon each specification of charges of which the respondent is determined to be guilty;

8. A requirement that a licensee pursue a course of education or training; and

9. A requirement that a licensee perform up to five hundred hours of public service in a manner and at a time and place as directed by the board. The board may stay such penalties in whole or in part or place the licensee on probation with or without imposition of one of the penalties provided pursuant to this section. Any fine imposed pursuant to this section or pursuant to paragraph (m) of subdivision ten of section two hundred thirty of this title may be sued for and recovered in the name of the people of the state of New York in an action brought by the attorney general. In such action, the findings, determinations and order of the board shall be admissible evidence and shall be conclusive proof of the violation and the penalty assessed.


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