Government investigators and the Department of Justice (“DOJ”) are focusing on alleged payment of kickbacks through cash, gift cards and other direct payment devices. Please make sure to document all sales and cash transactions so that the government has NO basis to try to allege that there are any kickbacks to clients, customers and patients. Especially for healthcare providers, this is an issue wrought with risk. Any government investigation is expensive, regardless of whether the target did anything wrong. That is the issue. So, protect yourself up front.
Especially for healthcare providers, if there is found to be any problem with the documentation or if a healthcare provider is found to be giving kickbacks in any way, the results can be severe for the healthcare provider and the owners, including not just money judgments, fines and exclusion from insurance programs and loss of licenses, but also criminal consequences.
For instance, over-reaching investigators have tried to allege that a hospital client of Epps & Coulson, LLP was involved in a kickback scheme by treating patients who resided in a nearby skilled nursing facility (“SNF”) and then when the patients were well enough to return to the SNF facility level of care and the patients were released back to that facility, the government contended that the hospital sending the patient back to the SNF from where they came was a kickback. The government claims were unfounded and after a lengthy harassing investigation, the government investigators from every state and federal alphabet unit from DOJ, FBI, DHS, HHS, DEA, IRS, etc. gave up and conceded there was no kickback scheme. That, however, cost the hospital (and the owners) a lot of time and attorneys fees.
In recent investigations, the government claimed against multiple providers that they are involved in kickbacks by accepting payments from gift cards. The government contended the providers pre-loaded the cards for patients to use to purchase items not covered by insurance.
To avoid potential government investigations and the hassles and legal repercussions intendent with those, providers especially would be well served by pro-actively educating all staff:
1. To document payments for any goods/services, including receipts and invoices.
2. Legal definitions of kickbacks and to identify and report potential issues.
3. Update internal policies.
4. Call counsel before talking with any investigator.
Spending time and money on up-front compliance programs and working with counsel can save time, heartache, and money in the end.
Epps & Coulson, LLP has represented clients of all business types. As for healthcare providers it ranges from hospitals and surgery centers to doctors groups and individual physicians, to skilled nursing facilities and pharmacies and their owners. We are committed to helping our clients navigate the complex business and legal landscape to avoid government investigation consequences and we keep up with what’s going on in these core areas. We are here to help you plan and grow and protect your business and rights. Please feel free to contact Dawn at: firstname.lastname@example.org for any questions.
Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney. It is likely considered advertising. Epps & Coulson, LLP encourages you to call to discuss these matters as they apply to you or your business. Epps & Coulson, LLP has affiliated Counsel offices in New York and Connecticut with lawyers also admitted in Connecticut, District of Columbia Massachusetts (pending), New Jersey, Hawaii, European Union, England and Whales, France (Paris Bar) and Sweden.