Monthly Archives: November 2016

November 29, 2016

Beware Gifts to Providers, Patients or Other Referral Sources

By Kim Stanger, Holland & Hart LLP

At this time of year, healthcare providers may want to give gifts to referring providers, patients or other sources of business; however, such gifts may violate federal and state fraud and abuse laws and result in fines—or worse—to both the giver and recipient. 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). Significantly, the AKS applies to both the giver and recipient; thus, soliciting or receiving gifts from vendors or other providers may expose the recipient to liability. 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. (See, e.g., Idaho Code 41-348 and 54-1814). 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 →

November 23, 2016

Responding to Negative Internet Reviews: Beware HIPAA

By Kim Stanger, Holland & Hart LLP

As a healthcare provider, you may log onto the internet one day only to discover a negative review from a disgruntled patient or family member. Undoubtedly, the review contains inaccurate, incomplete, or downright defamatory information. Your first impulse may be to post a response online, but doing so may subject you to HIPAA fines, adverse licensure action, or privacy lawsuits.

HIPAA generally prohibits healthcare providers from using or disclosing a patient’s protected health information without the patient’s authorization. (45 CFR 164.502). “Protected health information” includes information that “[r]elates to the past, present, or future physical or mental health or condition of an individual [or] the provision of health care to an individual, and … that [i]dentifies the individual, or [w]ith respect to which there is a reasonable basis to believe the information can be used to identify the individual.” (45 CFR 160.103). Thus, posting any information that identifies the individual as a patient likely violates HIPAA even if specific medical information is not disclosed; a patient does not waive their HIPAA rights by posting his or her own information, and there is no HIPAA exception that allows a healthcare provider to disclose information in response to a negative review. In 2013, Shasta Regional Medical Center paid $275,000 to settle claims that it violated HIPAA when it disclosed a patient’s health information to the media in response to a negative newspaper article. (See Press Release). ProPublica recently published a report identifying numerous HIPAA violations resulting from providers’ ill-considered responses to negative internet reviews. (See article).

Continue reading →