Feds sig­nal sharper scru­tiny of doc pay deals

Modern Healthcare - - NEWS - By Lisa Schencker

HHS has sig­naled its in­tent to more rig­or­ously en­force the anti-kick­back statute against in­di­vid­ual physi­cians who en­ter into im­proper pay­ment deals, fol­low­ing a dozen re­cent civil set­tle­ments in­volv­ing doc­tors.

HHS’ Of­fice of In­spec­tor Gen­eral is­sued a fraud alert last week that warned doc­tors to avoid agree­ments such as med­i­cal di­rec­tor­ships that could vi­o­late the statute. It said doc­tors’ com­pen­sa­tion must re­flect fair mar­ket value for ser­vices pro­vided.

It’s com­mon for doc­tors to be em­ployed by provider or­ga­ni­za­tions as med­i­cal di­rec­tors, but those ar­range­ments might vi­o­late the anti-kick­back law when their pur­pose is to get more re­fer­rals from those doc­tors, ac­cord­ing to the alert.

The OIG is hir­ing ad­di­tional lawyers to look into tak­ing more ad­min­is­tra­tive ac­tions against doc­tors in­volved in such ar­range­ments, Kevin Barry, a deputy chief in the OIG’s of­fice, said at an Amer­i­can Bar As­so­ci­a­tion’s health law con­fer­ence last week.

“What we’re see­ing is OIG tak­ing more of an in­ter­est in pur­su­ing the physi­cian side of the ques­tion, at least look­ing at if a physi­cian has some role to play or li­a­bil­ity in the con­duct,” said Tony Maida, a part­ner at McDer­mott Will & Emery, and a for­mer deputy chief of the OIG’s Ad­min­is­tra­tive and Civil Reme­dies Branch.

The alert said that while “many com­pen­sa­tion ar­range­ments are le­git­i­mate, a com­pen­sa­tion ar­range­ment may vi­o­late the anti-kick­back statute if even one pur­pose … is to com­pen­sate a physi­cian for his or her past or fu­ture re­fer­rals.”

Maida notes that the new alert is the third in three years in­volv­ing physi­cians. In 2013, the OIG is­sued a fraud alert about physi­cian-owned de­vice dis­trib­u­tor­ships, and in 2014, it is­sued a fraud alert about lab­o­ra­tory pay­ments to physi­cians.

The OIG reached set­tle­ments re­cently with 12 in­di­vid­ual physi­cians who en­tered into “ques­tion­able” med­i­cal di­rec­tor­ship and of­fice staff ar­range­ments, the agency said. In those cases, the gov­ern­ment al­leged that pay­ments to physi­cians took into ac­count the vol­ume or value of their re­fer­rals, or did not re­flect fair-mar­ket value, or the doc­tors did not ac­tu­ally pro­vide the ser­vices out­lined in their agree­ments. In some cases, the OIG al­leged that doc­tors en­tered into agree­ments in which an af­fil­i­ated health­care en­tity paid the salaries of their of­fice staff.

Those set­tle­ments were with doc­tors who had signed med­i­cal-direc­tor and re­fer­ral-co­or­di­na­tor deals with Fair­mont Di­ag­nos­tic Cen­ter and Open MRI in Hous­ton. Fair­mont did not re­spond to re­quests for com­ment.

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