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Online marketing campaign illegal? / The Battle of the Beverage

March 14, 2013

Question:

Jennifer,

I am interested in placing an ad for services with a large national company, not Groupon.  I remember there being a big to-do about Groupon a while back but wanted to know whether it is okay for me to proceed with my marketing plan.  The company says they will offer unlimited vouchers to be purchased and they will keep 50% of the money that comes in for each purchase.  They told me what they do is legal because there is no guarantee the patient will come see me.

What are your thoughts?

Thanks,
Dr. F

Answer:

With most arrangements the devil is in the details.  Having not seen the contract I am reluctant to give specific advice, so instead will stick to the general.  The facts provided indicate that the company has conducted an "Anti-kickback" analysis and determined that pursuant to certain advisory opinions (including this one - https://oig.hhs.gov/fraud/docs/advisoryopinions/2008/AdvOpn08-19.pdf) generated by the Office of Inspector General that are somewhat related because they are in the marketing arena, that enough elements exist for there not to be a kickback here.  I would tend to agree that based on the limited facts provided, there would be limited exposure most likely under the Anti-Kickback statute. 

However, the facts provided do clearly indicate there may very well be a fee-splitting issue.  Many states, NY included, prohibit healthcare practitioners from sharing fees with non-professionals.  Fee splitting laws are state specific.  This issue was addressed very publicly in New York just over one year ago (on March 12, 2012) by ABC news, where counsel to the NYS Dental Association, Lance Plunkett, Esq., commented and explained fee splitting and potential exposure for practitioners.  That segment is available HERE -
http://abclocal.go.com/wabc/story?section=news/health&id=8578116&status=ok.  So, based on the facts provided, I would proceed with caution.  I do recommend you send the contract with the marketing company to my attention for review and that we work to hopefully have the company modify its payment arrangement to a flat fee that does not take into account the value or volume of potential lead generation.  While marketing is a key piece to success for many companies, understanding and preventing potential exposure should be a top priority.  You have to ask, is the juice worth the squeeze?



The Battle of the Beverage

While coverage of NY's soda battle has been prolific, we have noticed an absence in actual explanation of the opinion set forth by Judge Tingling.

CLICK HERE to read Attorney Kate Maguire's review and analysis of the Battle of the Beverage court decision. https://www.kirschenbaumesq.com/article/pdf/002567-battle-of-the-beverage.pdf
 


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