Kickbacks and the Damage Done

Elizabeth E. Hogue, Esq.

Case managers/discharge planners continue to come under fire from fraud enforcers for violations of the federal anti-kickback statute. This statute generally prohibits anyone from either offering to give or actually giving anything to anyone in order to induce referrals. Case managers/discharge planners who violate the anti-kickback statute may be subject to criminal prosecution that may result in prison sentences, among other consequences.

Most recently owners of a home health agency and a hospice pled guilty to one (1) count of conspiracy to commit health care fraud and one (1) count of conspiracy to pay and receive health care kickbacks.

According to court documents, the owners paid and directed others to pay kickbacks to multiple individuals for patient referrals from at least July, 2015, through April, 2019. Kickbacks were paid to employees of health care facilities as well as employees’ spouses.

Specifically, kickbacks were paid to:

- A registered nurse who worked as a discharge planner/case manager at a local hospital;

- The director of social services at a skilled nursing facility (SNF) and assisted living facility (ALF); and

- The director of social work at another SNF.

In total, the owners submitted over 8000 claims to Medicare for home health and hospice services. The Medicare Program paid the providers approximately $31 million. Of this amount, Medicare paid over $2 million for services provided to patients who were referred in exchange for kickbacks. Because the referrals were obtained by paying kickbacks, the providers should not have received any reimbursement from the Medicare Program for services provided to these patients.

In separate cases, the hospital discharge planners/case managers and social workers who received kickbacks pled guilty to receipt of kickbacks. They await sentencing.

The Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS), the primary enforcer of fraud and abuse prohibitions, says that discharge planners/case managers and social workers cannot accept the following from providers who want referrals:

˗ Cash

˗ Cash equivalents, such as gift cards or gift certificates

˗ Non-cash items of more than nominal value

˗ Free discharge planning services that case managers/discharge planners and social workers are obligated to provide

The services provided by discharge planners/case managers and social workers are extremely important and are valued by many patients and their families, but the credibility and trustworthiness of discharge planners/case managers and social workers is destroyed when they make referrals based on kickbacks received.

Now a word to managers and all the way up the chain of command to CEOs. Whether or not you know that case managers/discharge planners are accepting kickbacks, the OIG may also hold you responsible. The OIG has made it clear that your job is to monitor and to be vigilant. If you knew or should have known, you may be responsible. A good starting point is to put a policy and procedure in place that requires discharge planners/case managers to report in writing anything received from post-acute providers. Or how about a policy and procedure that prohibits all gifts?!

Now a word to post-acute marketers. Don’t give kickbacks to discharge planners/case managers and social workers! It’s simply not true that you must give kickbacks in order to get referrals. The proverbial bottom line is: Do you like the color orange? Is orange your preferred fashion statement?

Please stop now!

Office: 877-871-4062

Fax: 877-871-9739

E-mail: ElizabethHogue@ElizabethHogue.net

Twitter: @HogueHomecare

©2021 Elizabeth E. Hogue, Esq. All rights reserved.

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