What’s to learn from Wells Fargo?

Healthcare attorney Elizabeth Hogue spells out legal considerations of sales programs
Friday, October 14, 2016

YARMOUTH, Maine – Banking giant Wells Fargo is under fire from consumers and Congress for setting such high sales goals, employees felt pressured to create sham accounts. The controversy has shined a light on how companies set up their sales program.

Luckily, the banking and healthcare industries aren’t one in the same, says healthcare attorney Elizabeth Hogue.

“Wells Fargo got dinged, but HME suppliers should have checks in place to prevent submission of bogus claims,” she said.

That’s not to say that there are no restrictions. To avoid penalties under the Anti-Kickback Statute, sales staff must be W-2 employees and not independent contractors; the sale must meet all applicable requirements for reimbursement; and the compensation must be reasonable—“whatever that means,” says Hogue.

“If sales people are being paid commission for a lot of sales that are ultimately denied by Medicare or Medicaid, or which are later determined not to meet applicable criteria, that could call incentive compensation into question,” she said.

While no single activity will raise a red flag for regulators, Hogue says, “Whatever the government seems to be scrutinizing the most that day, are the ones I would be careful of.”

Should the Office of Inspector General (OIG) find violations, providers could face criminal penalties, including prison sentences and fines; and civil penalties, including suspension or exclusion from the Medicare and Medicaid Programs and all other federal and state healthcare programs, and more fines.

“What the OIG really wants to see are compensation programs that are based not only on sales but also quality of care,” said Hogue. “For example, if sales people are selling directly to patients then a quality indicator might be patient satisfaction.”

When it comes to legally dotting i’s and crossing t’s, Hogue’s advice is listen to your gut.

“I think providers need to ask themselves, ‘Does this look all right? Does it pass the smell test?’” she said. “Is a competitor or a regulator or a whistleblower going to look at this and say, ‘Huh, what’s going on over there?’”