Minnesota and Federal Patient Solicitation Laws
What is Patient Solicitation?
Patient solicitation is when an employee or employer that willingly and knowingly convinces a patient to obtain services and goods elsewhere that is not where the employee or employer currently works. Minnesota does not have a direct state law on patient solicitation, however, the federal government does – the Anti-Kickback Statute and Stark Law which are further discussed below.
Example of solicitation:
- Direct marketing to patients from your old employer
- Taking money from providers and suppliers in return for Medicare and Medicaid patients
https://oig.hhs.gov/compliance/physician-education/fraud-abuse-laws/
Examples of non-solicitation:
- Giving notice to your current patients you will be working elsewhere
- General marketing of your services or practice
- Providing services not offered by the current practice (i.e. a registered nurse at a general practitioners office employed to a dermatology office)
Anti-Kickback Statute
This federal law prohibits the payment of kickbacks or other forms of value in exchange for referrals of patients to other health care providers, hospitals, etc. Also, when a “reward” is suggested to the patient for agreeing to their suggestions or recommendations of services. However, the services and products must be paid for by federal and state governments through health care programs such as Medicare, Medicaid, TRICARE, and CHAMPVA.
This law has been interpreted to cover any arrangement where “one purpose” of the remuneration is to induce referrals for or receipt of federal program business. That is, if your primary purpose is to obtain new patients (referrals) then you have violated the law.
Who needs to comply?
Here are some medical professionals besides physicians (including psychiatrists) that need to comply but not limited to:
- Pharmacists
- Registered Nurses
- Marketing staff
- Office administrators or procurement staff for medical offices
What is a Kickback?
Here are some of the few types of kickbacks but not limited to:
- Accepting money
- Accepting gifts
- Bribes
- Over billing
Exceptions (called Safe Harbor Regulations) include but not limited to:
- Payments made by a lessee to a lessor for usage of a unit/premises
- Payment for equipment rental
- Sale of practice to a practitioner by another practitioner
Penalties for AKS Violation
A violation of the law results in 10 years in prison maximum, a $100,000 criminal penalty, a $100,000+1 civil penalty, treble damages, and exclusion from participating in the Medicare or Medicaid programs.
Stark Law (Physicians Only)
This law prohibits the same type of behavior from the AKS but with distinct differences. Most importantly, there does not need to be intent from the physician, if you carried out the behavior/action, then you have violated the law.
What is Prohibited?
Physicians who have (or whose immediate family member has) a financial relationship (for example, payments) with a provider of designated health services from making referrals of Medicare or Medicaid patients to such providers in exchange to receive any of these designated health services.
A few exceptions include:
- Rental of premises or equipment
- In-office ancillary services
- Services provided by academic medical centers
What is a Referral?
The request by a physician for an item or service for which payment may be made under Medicare or Medicaid (request for consultation with another physician, any test, service, or procedure ordered).
Penalties for Stark Law Violation
A violation of the law could result in refunds of the amounts collected and/or civil monetary penalties up to $15,000 for each claim submitted.