{"id":572,"date":"2018-12-13T15:51:41","date_gmt":"2018-12-13T15:51:41","guid":{"rendered":"https:\/\/advantagehcconsulting.com\/blog\/?p=572"},"modified":"2018-12-13T15:51:43","modified_gmt":"2018-12-13T15:51:43","slug":"beware-these-gift-giving-taboos-at-holiday-time","status":"publish","type":"post","link":"https:\/\/advantagehcconsulting.com\/blog\/2018\/12\/13\/beware-these-gift-giving-taboos-at-holiday-time\/","title":{"rendered":"Beware These Gift-Giving Taboos At Holiday Time"},"content":{"rendered":"\n
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Remember, Medicare is a whole different world when it comes to gifting to your associates.<\/em><\/strong><\/p>\n\n\n\n

Giving gifts to those you work with may seem like a natural way to share holiday cheer this time of year \u2014 but be careful you\u2019re not inviting fines or even criminal charges under updated guidelines.<\/p>\n\n\n\n

Background: <\/strong>Showering lavish gifts on referring physicians, other healthcare associates, business partners, vendors, and\/or patients can get you into hot water with the feds. Additionally, the last year\u2019s enforcement results highlight that the HHS Office of Inspector General <\/strong>has put gift-giving at the top of its target list, levying substantial penalties for providers bunking federal laws. So it is important to remember that depending on the value and circumstances of your gift, the feds can \u2014 and do \u2014 bring major fines for gift-giving violations under the Anti-Kickback Statute (AKS) and the Stark Law.<\/p>\n\n\n\n

Though the temptation to celebrate the season with gift-giving can be overwhelming, it\u2019s wise to check yourself and follow the rules. Under the AKS, even if you have the very best of intentions, gifts suggest a financial obligation \u2014 and that\u2019s a no-no.<\/p>\n\n\n\n

\u201cGifts from health care providers to referral sources, patients, vendors, and colleagues can create unintentional sticky situations,\u201d cautions attorney Patricia Hofstra <\/strong>with Duane Morris <\/strong>in Chicago.<\/p>\n\n\n\n

AKS: <\/strong>Remember that the AKS is a criminal law and violating the gift-giving rules outlined under the regulation is considered a crime. \u201cIt is a felony to offer, provide, request, or accept any payment if one purpose is to influence payments under a federal healthcare program,\u201d stresses attorneyDavid Glaser <\/strong>with Fredrikson & Byron <\/strong>in Minneapolis. \u201cPaying referral sources is a big problem.\u201d<\/p>\n\n\n\n

This is particularly important for Medicare and Medicaid providers, as AKS is tied up with federal healthcare programs. Enforcement activity also shows that providers who frequently incentivize referrals with big holiday payouts may face both civil and criminal indictments \u2014 and exclusion from state and federal healthcare programs down the line.<\/p>\n\n\n\n

\u201cSignificantly, 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,\u201d explains attorney Kim Stanger <\/strong>of Holland & Hart <\/strong>in legal analysis of the statute. \u201cThe OIG has suggested that \u2018nominal\u2019 gifts would not create much AKS risk, but offers no guidance as to what is \u2018nominal\u2019.\u201d<\/p>\n\n\n\n

\u201cIn some industries, it is acceptable to reward those who refer business to you,\u201d OIG reminds. \u201cHowever, in the federal healthcare programs, paying for referrals is a crime.\u201d<\/p>\n\n\n\n

Stark: <\/strong>Ethically speaking, if you give extravagant presents to referring physicians or their family members over the holidays, that\u2019s a violation of the physician self-referral law, or Stark for short. \u201cGifts create a financial relationship under Stark,\u201d advises Stanger.<\/p>\n\n\n\n

\u201cAccordingly, Stark would prohibit the physician from referring patients to the giver for certain designated health services payable by Medicare or Medicaid, and would prohibit the giver from billing for those services, unless a regulatory exception applies.\u201d He adds, \u201cStark violations may result in civil penalties, repayments, and False Claims Act [FCA] liability.\u201d<\/p>\n\n\n\n

Use Good Judgement When Giving<\/strong><\/p>\n\n\n\n

Though you may need to put the kibosh on any luxurious gift baskets that you were planning to give your favorite docs or vendors, you can still offer a token of appreciation and holiday spirit. \u201cCertain small gifts such as pens or coffee mugs are permissible, other larger gifts are not,\u201d Hofstra counsels.<\/p>\n\n\n\n

In fact, the feds allow some holiday cheer \u2014 however, they don\u2019t really go into detail. \u201cThe OIG has suggested that \u2018nominal\u2019 gifts would not create much AKS risk,\u201d Stanger notes. \u201cBut, [the agency] offers no guidance as to what is \u2018nominal\u2019.\u201d To be on the safe side, it\u2019s wise to keep your gift-giving in line with the federal requirements.<\/p>\n\n\n\n

Beneficiaries: <\/strong>The government determines that Medicare providers may give gifts with a retail value equaling $15 per gift or $75 annually per beneficiary. Giving cash to these patients also triggers the Civil Monetary Penalties Law (CMPL) and suggests that these gifts may be looked at as a way to influence beneficiaries. \u201cAs with the AKS, the CMPL does not apply to private pay patients, although state kickback, rebate, or fee splitting statutes may apply,\u201d reminds Stanger.<\/p>\n\n\n\n

Referring physicians: <\/strong>Regulation 42 CFR 411.357(k) outlines the non-monetary compensation limits under the Stark Law as well as certain medical staff incidental benefits, notes the CMS Consumer Price Index-Urban All Item (CPI-U) guidance. Medical staff incidental benefits refer to things as varied as meals and transportation, according to national law firm Hall Render <\/strong>in online analysis.<\/p>\n\n\n\n

Adjusted annually for inflation, the CY 2018 limits are $407 for non-monetary compensation and $34 for medical staff incidentals. Next year, there\u2019s a slight bump of 2.3 percent. In 2019, $416 will be allowed for non-monetary compensation and less than $35 for each occurrence of medical staff incidentals.<\/p>\n\n\n\n

See the CMS breakdown at www.cms.gov\/Medicare\/Fraud-and-Abuse\/PhysicianSelfReferral\/CPI-U_Updates.html<\/a>.<\/p>\n\n\n\n

Vendors: <\/strong>Don\u2019t forget that the vendors you deal with fall under referral territory, too. \u201cThe AKS may also apply to gifts offered by vendors: it prohibits providers from soliciting or receiving such gifts as a reward or in exchange for referring federal program business to the vendors,\u201d Stanger writes in analysis.<\/p>\n\n\n\n

Watch The Rules On Accepting Gifts, Too<\/strong><\/p>\n\n\n\n

You should exercise similar caution when it comes to accepting gifts, whether they come from referral sources, colleagues, or patients, suggests attorney Ross Lanzafame <\/strong>with Harter Secrest & Emery <\/strong>in Rochester, New York.<\/p>\n\n\n\n

Gifts from colleagues and patients can be particularly problematic, Lanzafame worries. \u201cAlthough the gift may appear innocent, the act of giving and accepting a gift can potentially create a conflict of interest for the recipient,\u201d he points out.<\/p>\n\n\n\n

Here\u2019s the problem: <\/strong>\u201cWhen someone gives a gift, the social construct within which we generally operate is that the gift will in some way be reciprocated. It is the polite thing to do,\u201d Lanzafame explains. \u201cThis social construct can potentially tempt the recipient to make decisions not motivated by objective factors, but rather based on the subjective in order to reciprocate.\u201d<\/p>\n\n\n\n

While it won\u2019t be a popular decision, \u201cmy rule of thumb, as difficult as it may be, is not to accept gifts,\u201d Lanzafame says. \u201cConsider advising patients and colleagues who desire to give gifts to make a donation to some public charity instead.\u201d<\/p>\n\n\n\n

Tip: <\/strong>If you don\u2019t have an agency compliance policy that includes your gift-giving procedures, you should add that to your holiday to-do list. \u201cHealth care providers should consult with counsel and exercise caution when giving gifts during the holidays, or at any time, to avoid the appearance of impropriety and potential prosecution for legal and regulatory violations,\u201d Hofstra counsels.<\/p>\n\n\n\n

Note: Find a more in-depth look at the fraud and abuse laws that govern healthcare and gift giving athttps:\/\/oig.hhs.gov\/compliance\/physicianeducation\/01laws.asp<\/a>.<\/em><\/p>\n\n\n\n

Source- SuperCoder<\/em><\/a><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

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