Provided by: Jennifer Kirschenbaum, Esq.
March 10, 2022
Question:
Hi Jennifer,
Many offices are offering to pay a percentage of product sales if I encourage patients to purchase. Why is the current offer I have not willing to give in on "market"?
Thanks, Dr. F
Answer:
Well, in NY and many other states incentivizing a provider to drive care is prohibited. In New York we have a specific prohibition on kickbacks for referrals tucked into the professional misconduct laws (https://www.health.ny.gov/professionals/office-based_surgery/law/6530.htm), in addition to federal prohibitions for any person or practice taking federal reimbursement, which means, by accepting such an arrangement you are actually putting your license at risk. You may be asking a follow up question of how you can be paid a percent of anything then; what's the difference? Well, if you are being paid a percentage for services rendered personally by you, but not for what you order or refer, then the thought process is you are not incentivizing care or inducing a "kickback" and, therefore, percentage compensation, for now, is an accepted and not explicitly illegal methodology for compensation.
As for the argument of, "but everyone else is doing it", I can't help there but to say that perhaps they will until they are explicitly held accountable?
