Monthly Archives: November 2013

November 26, 2013

Avoiding Business Associate Agreements

by Kim Stanger, Holland & Hart LLP

The HIPAA privacy rules now apply to both covered entities (e.g., healthcare providers and health plans) and their business associates. A “business associate” is generally a person or entity who “creates, receives, maintains or transmits” protected health information (“PHI”) in the course of performing services on behalf of the covered entity (e.g., consultants; management, billing, coding, transcription or marketing companies; information technology contractors; data storage or document destruction companies; data transmission companies or vendors who routinely access PHI; third party administrators; personal health record vendors; lawyers; accountants; malpractice insurers; etc.) (See 45 CFR 160.103). “A covered entity may be a business associate of another covered entity.” (Id.). Also, with very limited exceptions, a subcontractor or other entity that creates, receives, maintains or transmits PHI on behalf of a business associate is also a business associate. (Id.; 78 FR 5572). To determine if an entity is a business associate, see the attached Business Associate Decision Tree. Continue reading

November 11, 2013

Gifts to Referral Sources and Patients

by Kim Stanger, Holland & Hart LLP

At this time of year, many healthcare professionals want to give gifts to patients, physicians, or other referral sources to show their appreciation, but doing so may violate federal and state fraud and abuse laws. Here are some guidelines to ensure your gift giving does not get you in trouble with the government.

1. Gifts To Referral Sources. The federal Anti-Kickback Statute (“AKS”) prohibits soliciting, offering, giving, or receiving remuneration in exchange for referrals for items or services covered by federal healthcare programs (e.g., Medicare and Medicaid) unless the arrangement fits within a regulatory exception. (42 USC 1320a-7b(b)). AKS violations are felonies, and may result in criminal and civil penalties, False Claims Act liability, and exclusion from Medicare and Medicaid programs. The AKS is violated if one purpose of the remuneration is to induce federal program referrals, including gifts to referring practitioners or program beneficiaries to encourage or reward their business. (OIG Adv. Op. 12-14). Moreover, the AKS applies to both the giver and recipient. The OIG has suggested that “nominal” gifts would not create much AKS risk, but offers no guidance as to what is “nominal”. (65 FR 59441). The AKS does not expressly apply to referrals for private pay business, but the OIG has warned that offering remuneration to obtain private pay referrals may also induce federal program business and thereby violate the AKS. (OIG Adv. Op. 12-06). In addition, offering gifts to induce or reward private pay business may violate state laws, including state laws prohibiting kickbacks, rebates, or fee splitting. In short, you should not give or accept gifts to or from referral sources (especially those referring federal program business) unless the gift is truly nominal, is clearly and completely unrelated to past or future referrals, or is very unlikely to influence referrals. Continue reading