Legal wrap-up: Beware these dangerous pitfalls

Sunday, February 10, 2008

YARMOUTH, Maine - As providers look to gain an edge over competitors in the marketplace, they need to be very careful not to run afoul of Medicaid and Medicare rules and regulations. No great revelation there, but it continues to happen. Here are few things industry attorneys are seeing more and more of in the field. Their advice to HME providers: Beware.

Neil Caesar, Health Law Center, Greenville, S.C.
-- When it comes to joint ventures involving non-Medicare patients, DMEs still need to be aware of federal anti-fraud rules if "any aspect of the private relationship suggests that it is in whole or in part designed to get Medicare referrals." If, for example, a DME gives a doctor an extra special discount or some other "special consideration," expect the feds to take notice. "The government will look at that and say, 'Why would they be doing that sweetheart deal in the private sector? I wonder if it's because that will get them the Medicare business,'" Caesar said.
-- Even if the components of a joint venture arrangement fall within a safe harbor--meaning they're not considered fraudulent--the profits generated from the arrangement could be considered ill-gotten. For example, a contract between a hospital and DME falls within a safe harbor. But if the DME does all the work and shares the profits with the hospital, that kind of arrangement does not fly with the feds because both sides don't share in the risk. Nevertheless, "there are people out there really touting this kind of thing," Caesar said.

Jeff Baird, Brown & Fortunato, Amarillo, Texas
-- More and more state Medicaid fraud units are conducting fraud investigations while federal investigators sit on the sidelines and watch. The reason: State officials have gotten better at investigating healthcare fraud over the years, and realizing that, the feds are often content to watch and preserve their resources. "The bottom line is that providers have to be careful, if not more careful, submitting claims to state Medicaid programs as when they make claims to Medicare," Baird said.
-- Over the past year, Baird and his staff have seen providers submit incorrect claims to state Medicaid offices because of faulty information supplied to them by a manufacturer's sales rep. "It is well and good to listen to the advice of a rep and they are often right, but the supplier cannot accept that advice as gospel," Baird said.
-- You cannot "mine" a doctor's patient base. That is, a provider cannot ask a physician referral source for patient contact information for the purpose of marketing DME services to those patients. That violates HIPAA. However, the DME can ask the physician to correspond with his patients and recommend the DME, leaving it up to the patients to make contact, Baird said.