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When is it appropriate to refer patients to other family members?

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  • #16
    Originally posted by AR View Post

    Thanks this is helpful. So let me ask you about a couple of scenarios.

    1. X and Y are married docs. Both are employees (i.e., no ownership) in different practices. Y is in a subspecialty that X often needs to refer to. Is it a Stark violation if X refers to Y?

    2. X and Y are married docs. Both are employees (i.e., no ownership) in different practices. Y is in a subspecialty that X often needs to refeer to. Is it a Stark violation if X refers to Z who works in the same office as Y and practices the same specialty?

    For both of the questions above, if it is a Stark violation, are you saying the referral is OK if the patient is not a Medicare/Medicaid patient?
    1. Sending a referral to a spouse is always going to be a no-no. So scenario 1 is a violation.

    2. Sending a referral to a colleague of a spouse is not a no-no, as long as there is clarity that the spouse does not benefit from the referral. My family member's colleagues routinely send me patients; there's no financial interest for them so not a Stark violation. Similarly, because I am a hospital employee not a partner, my family member can refer patients to my colleagues with no problems, because no financial relationship exists between me and and my colleagues. However, I can't send referrals to the colleagues of my family member because my family member has a claim to the practice A/R (pooled pot), so a referral to their partner does financially benefit them.

    Stark applies to Medicare/Medicaid patients only. AntiKickback statute applies to all federal healthcare (Indian Health, Tricare etc) as well as Medicare/Medicaid. Uninsured and commercially insured patients are not covered under Stark, so referrals are fine. I do disclose the family relationship prior to referral just to avoid any risk of patients feeling like I'm pulling a fast one on them. Hope that helps.

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    • #17
      Originally posted by pulmdoc View Post

      1. Sending a referral to a spouse is always going to be a no-no. So scenario 1 is a violation.

      2. Sending a referral to a colleague of a spouse is not a no-no, as long as there is clarity that the spouse does not benefit from the referral. My family member's colleagues routinely send me patients; there's no financial interest for them so not a Stark violation. Similarly, because I am a hospital employee not a partner, my family member can refer patients to my colleagues with no problems, because no financial relationship exists between me and and my colleagues. However, I can't send referrals to the colleagues of my family member because my family member has a claim to the practice A/R (pooled pot), so a referral to their partner does financially benefit them.

      Stark applies to Medicare/Medicaid patients only. AntiKickback statute applies to all federal healthcare (Indian Health, Tricare etc) as well as Medicare/Medicaid. Uninsured and commercially insured patients are not covered under Stark, so referrals are fine. I do disclose the family relationship prior to referral just to avoid any risk of patients feeling like I'm pulling a fast one on them. Hope that helps.
      Very helpful, thanks. Here are a couple more:

      1. What exactly is the difference between Stark and AntiKickback?

      2. This one is probably for an attorney, but let's say you refer a patient who has private insurance, but by the time they get to the specialist, they have a change in insurance provider to Medicaid/Medicare. Violation or not?

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      • #18
        1) Stark primarily deals with self referrals. Antikickback says that the referring provider cannot receive anything of value ($$, gifts, discounted rent etc etc etc) from the referred entity as an inducement for their referrals. These are similar ideas for physicians; that personal enrichment doesn't determine where patients are referred. Stark is more complicated in that there are a number of exemptions, the most unobvious of which is that internal self referral within a group practice is acceptable, while external self referral is not. So if two family members both work at, say, a large nonprofit or an academic center, then referrals are ok. However, if they are in separate practices it's not ok.

        2) Pretty rare case I would say. That said, Stark violations do not need to show intent in order to be a violation. So if that did happen, I would imagine it would be difficult to defend* (*i'm not a lawyer). Hopefully, if you and spouse are sending commercial referrals to each other, the front office staff are trained to reject any referrals from you with Medicare/Medicaid insurance so there aren't problems.
        Last edited by pulmdoc; 03-18-2020, 08:27 AM. Reason: typo

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        • #19
          Originally posted by pulmdoc View Post
          1) Stark primarily deals with self referrals. Antikickback says that the referring provider cannot receive anything of value ($$, gifts, discounted rent etc etc etc) from the referred entity as an inducement for their referrals. These are similar ideas for physicians; that personal enrichment doesn't determine where patients are referred. Stark is more complicated in that there are a number of exemptions, the most unobvious of which is that internal self referral within a group practice is acceptable, while external self referral is not. So if two family members both work at, say, a large nonprofit or an academic center, then referrals are ok. However, if they are in separate practices it's not ok.

          2) Pretty rare case I would say. That said, Stark violations do not need to show intent in order to be a violation. So if that did happen, I would imagine it would be difficult to defend* (*i'm not a lawyer). Hopefully, if you and spouse are sending commercial referrals to each other, the front office staff are trained to reject any referrals from you with Medicare/Medicaid insurance so there aren't problems.
          Thanks again. Does Antikickback apply to private insurers also? My default assumption is that it would, but based on your past post it sounds like it might not, which seems very odd.

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          • #20
            Originally posted by AR View Post

            Thanks again. Does Antikickback apply to private insurers also? My default assumption is that it would, but based on your past post it sounds like it might not, which seems very odd.
            Stark and Antikickback Statute specifically refer to federal payors. So private insurance and self pay does not apply.

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            • #21
              Originally posted by pulmdoc View Post

              Stark and Antikickback Statute specifically refer to federal payors. So private insurance and self pay does not apply.
              Wait, so I can just have an overt policy of sending back a $100 check to the referring provider of every Blue Cross patient referred to me and that's not illegal?

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              • #22
                Yup. Although a $100/pt kickback would be a serious drag on your bottom line.

                Corporate ethics are very different. Kickbacks/gifts are considered normal behavior in many areas of business. How else can corporate suites at your local pro/college sports arena get written off as a business expense? Because inviting important clients to a $10,000/game experience is just part of the cost of doing business.

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                • #23
                  Originally posted by pulmdoc View Post
                  Yup. Although a $100/pt kickback would be a serious drag on your bottom line.

                  Corporate ethics are very different. Kickbacks/gifts are considered normal behavior in many areas of business. How else can corporate suites at your local pro/college sports arena get written off as a business expense? Because inviting important clients to a $10,000/game experience is just part of the cost of doing business.
                  Wow! I had no idea. I must say, I'm still a little skeptical. But it's not something I can or would do, so I'll take your word for it.

                  $100/per patient could make economic sense in many cases (e.g. spine surgeon gives $100 per blue cross patient taken to OR; plastic surgeon give $100 per patient who actually gets a face lift).

                  One of the reasons I'm skeptical is the following:

                  Doc A refers to Doc B. Doc B has a policy of kicking back 3% of collections to Doc A for every non-Federal payor referral. Doc A refers 50% Medicare patients and 50% non-Medicare patients. Although, Doc A gets no kickback on the Medicare patients, he is still incentivized to send the Medicare patients to Doc B to stay on his good side and keep the gravy train running. Even if Doc B doesn't explicitly say something like "If you stop sending the Medicare patients, then the kickback for the others goes away".

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                  • #24
                    Originally posted by AR View Post

                    Wow! I had no idea. I must say, I'm still a little skeptical. But it's not something I can or would do, so I'll take your word for it.

                    $100/per patient could make economic sense in many cases (e.g. spine surgeon gives $100 per blue cross patient taken to OR; plastic surgeon give $100 per patient who actually gets a face lift).

                    One of the reasons I'm skeptical is the following:

                    Doc A refers to Doc B. Doc B has a policy of kicking back 3% of collections to Doc A for every non-Federal payor referral. Doc A refers 50% Medicare patients and 50% non-Medicare patients. Although, Doc A gets no kickback on the Medicare patients, he is still incentivized to send the Medicare patients to Doc B to stay on his good side and keep the gravy train running. Even if Doc B doesn't explicitly say something like "If you stop sending the Medicare patients, then the kickback for the others goes away".
                    Agree with you. But that would be hard to prove.

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                    • #25
                      I definitely take the "Don't do something I might have to justify in court" approach. My sense is that an arrangement of "kickbacks for commercial insurance, no kickbacks for Medicare pts" might be successfully argued as legal in court, but may not be worth the expense/reputational damage/stress of going to prison involved* (*I'm still not a lawyer). It might make sense for a physician who was cash-only (cosmetics?) to make an arrangement such as this with a consierge PCP, but for most physicians who accept a mix of payors it's not worth the downside risk of a qui tam lawsuit.

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                      • #26
                        Originally posted by pulmdoc View Post
                        I definitely take the "Don't do something I might have to justify in court" approach. My sense is that an arrangement of "kickbacks for commercial insurance, no kickbacks for Medicare pts" might be successfully argued as legal in court, but may not be worth the expense/reputational damage/stress of going to prison involved* (*I'm still not a lawyer). It might make sense for a physician who was cash-only (cosmetics?) to make an arrangement such as this with a consierge PCP, but for most physicians who accept a mix of payors it's not worth the downside risk of a qui tam lawsuit.
                        Yeah, I agree. I'd never do it, but I didn't think it was even remotely legal.

                        Anyway, going back to the original topic, here's a few more:

                        1. What exactly constitutes a referral? Does it have to be written? It sounds like if you verbally tell the patient, it doesn't count. That doesn't quite make sense.
                        2. What if the patient asks you to send a referral to Dr. X (who you can't for Stark reasons). Can you just document patient's request and do it? Or do you have to refuse that.
                        3. Hypothetical scenario: Doc A and Doc B are married. Doc A sees a patient and who needs a referral to a cardiologist. Doc A sends a referral to the cardiology practice of the academic medical center affiliated with the only medical school in town (we'll call it University Cardiology Associates). Doc A does not specify any particular cardiologist, but just refers the patient University Cardiology Associates requesting the earliest available appointment as the issue is somewhat urgent. Doc B is an employed cardiologist at University Cardiology Associates.
                        -- if Doc B ends up seeing the patient for an initial consultation, is that not a Stark violation, since it wasn't a referral to him per se?
                        -- if someone else sees the patient initially and then leaves the practice, and Doc B inherits the patient, is that a Stark violation?
                        -- if someone else sees the patient initially and then decides that Doc B's niche is better for this patient and refers the patient internally to Doc B to take over care, is that a Stark violation?

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                        • #27
                          Originally posted by AR View Post

                          Yeah, I agree. I'd never do it, but I didn't think it was even remotely legal.

                          Anyway, going back to the original topic, here's a few more:

                          1. What exactly constitutes a referral? Does it have to be written? It sounds like if you verbally tell the patient, it doesn't count. That doesn't quite make sense.
                          2. What if the patient asks you to send a referral to Dr. X (who you can't for Stark reasons). Can you just document patient's request and do it? Or do you have to refuse that.
                          3. Hypothetical scenario: Doc A and Doc B are married. Doc A sees a patient and who needs a referral to a cardiologist. Doc A sends a referral to the cardiology practice of the academic medical center affiliated with the only medical school in town (we'll call it University Cardiology Associates). Doc A does not specify any particular cardiologist, but just refers the patient University Cardiology Associates requesting the earliest available appointment as the issue is somewhat urgent. Doc B is an employed cardiologist at University Cardiology Associates.
                          -- if Doc B ends up seeing the patient for an initial consultation, is that not a Stark violation, since it wasn't a referral to him per se?
                          -- if someone else sees the patient initially and then leaves the practice, and Doc B inherits the patient, is that a Stark violation?
                          -- if someone else sees the patient initially and then decides that Doc B's niche is better for this patient and refers the patient internally to Doc B to take over care, is that a Stark violation?
                          1) A referral is an action taken by provider A such that the patient receives medical goods or services from provider B. Written, faxed, telephone requests, DME/therapy orders, lab requests, imaging orders etc. are referrals. Provider A telling a patient "hey it's a good idea to see Provider B" without any subsequent action on Provider A's part is not a referral-its the difference between telling someone to exercise and sending a referral to cardiac rehab. The former is a suggestion, the latter case involves an action by the provider to make things happen.

                          2) I would refuse to send an illegal referral, yes.

                          3) It would be safest from a legal standpoint that Doc A specify a cardiologist on the referral who is not their spouse. Doing a referral to "Doc C or first available appointment" would probably also be ok* (*legal disclaimer here).

                          4) If doc B inherits the patient from another doctor or is referred within the cardiology group due to subspeciality, those are both allowed under Stark because Doc A wasn't the one doing the referring. Under Stark, internal (same group) self referrals are allowable, including for ancillary testing. Ditto if the patient changes doctors of their own volition.


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