Legal: Don’t run afoul of statute

Q. My patients need a qualifying test and a physician interpretation of that test in order to obtain a prescription for an item. Can I pay for all or part of the cost of the test or the interpretation?
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Monday, April 23, 2018

A.  It depends on how the item will be paid for and where the patient lives, but for most patients this would not be acceptable.

The Federal Anti-Kickback Statute (AKS) prohibits a supplier from giving a person something of value to induce the person to purchase an item covered by a federal health care program. Most states have similar laws, and some states have an AKS that applies regardless of how the item is being paid for (e.g., Medicaid, commercial insurance, cash). Paying for the cost of a test or its interpretation could be seen as relieving a patient of a cost the patient would otherwise be responsible for. And even if the patient’s insurance would otherwise cover the test or its interpretation, the supplier could still be relieving the patient of a cost if the patient has cost-sharing obligations.

So if a DME supplier or an affiliated entity pays for a patient’s qualifying test or its interpretation, there is a risk that a regulator would view this as the supplier giving the patient something of value in the form of covering the cost of the test or interpretation in order to induce the patient to purchase the prescribed item from the supplier.