Just Say No, Doc

Suppose you’re a doctor, and some of your patients are Medicare beneficiaries who need home healthcare services.

Suppose you’re approached by a company that provides such services and offered cash (or other remuneration) in exchange for sending your patients there.

If you take the money and steer your patients to that provider, you’re guilty of violating the federal Anti-Kickback Statute. See 42 U.S.C. § 1320a-7b(b)(1)(A). That’s easy enough.

But what if you take the money without steering your patients to any provider?

What if, instead, you simply give your patients information on twenty different providers, have them choose their provider from the list, and then certify their independent choices for payment by Medicare?

Can you still be guilty for taking the money even though your patients chose their providers on their own?

The answer is yes, according to a prominent federal court of appeals that covers Wisconsin, Illinois, and Indiana. The court upheld the conviction of a doctor who never recommended any provider, or directed his staff to recommend a provider, or even discussed the list of providers with patients personally. The court upheld his conviction even though there was no question his patients needed home health care or received adequate care from the providers they chose. And it upheld the conviction even though most of his patients continued to use other providers even after he began taking money from the one.

Even if the doctor had nothing to do with his patients’ choices, the court held that his certifications were “referrals” within the meaning of the Anti-Kickback Statute because he served as a “gatekeeper to federally-reimbursed care,” and as such, he had confirmed his patients’ choices and blessed the need for the services he referred them to. If the rule were otherwise, the court reasoned, a doctor could refuse to certify a patient to a provider who didn’t pay him a kickback, or if he got the kickback, he could certify (or recertify) a patient even if he thought the provider’s services were substandard, unnecessary, or inferior to those of another provider. The court noted that its interpretation of the statute was not new and had been publicized by the Department of Health and Human Services nearly twenty years ago. See 60 Fed. Reg. 40,847 (Aug. 10, 1995).