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Legal Landmines: Top Home Health Agency Marketing Mistakes

The final speaker for the Power Referrals Pre-Conference Workshop was Lis Zink-Person, Esq. President of Pearson & Bernard in Covington, KY. Liz is a long time friend and well know attorney for home health agencies. Liz helps her clients avoid run-ins with the law in the areas of Mediare Fraud and Abuse, avoiding violations of Antikickback statues, and the Stark II law.

Liz shared with the group her “Top Ten Marketing Mistakes That Can Lead to Trouble.”

1. No Marketing Policies – You need to have clearly written policies that guide your clinical and marketing staffs in what they can and cannot do in the way of business development in your company.

2. Buying Referrals from Anyone – Liz pointed out specific aspects of Antikickback law and Stark II that make it illegal to buy Medicare or Medicaid referrals.

3. Problem Relationships with Other Providers – Be cautious in developing business collaborations, joint ventures, or vendor relationships with Physicians, Hospitals, Assisted Living Facilities, and others who are in a position to refer patients.

4. Failure to Use Safe Harbor – 42 CFR ~ 1001.952 provides Safe Harbors to protect legitimate business relationships which would otherwise violate the law. These include arrangements for equipment rental, space rental, personal services, management services, discount buying groups, and employees. You need to protect these legitimate relationships with clear contracts, stated duties, and Fair Market Value rates.

5. Freebies to Facilities – You cannot provide FREE services to Assisted Living Facilities, Skilled Nursing Facilities, or Hospitals such as educational programs or discharge planning services. You also cannot rent space or a work station in an ALF or SNF at more than Fair Market Value rates.

6. Patient Inducements – It is a HIPAA restriction that prevents giving gifts to patients that may appear to be inducements to receive Medicare or Medicaid services. An OIG special advisory limits non-monetary gifts to $10 per gift and $50 value annually.

7. Untrained and Unsupervised Sales Force – Train your sales force and anyone who is involved in marketing on your established standards of conduct, and the rules and laws which govern inducements to make referrals.

8. Over-Incentivizing Marketers – It’s OK to pay an incentive or bonus to Bona Fide W-2’d employees, but Liz cautions you not to let your sales reps get carried away with what they will do to get a referral in order to get that bonus. Pay for legitimate, legally compliant new business.

9. Skimping on Compliance – Non-compliant marketers are trouble. Audit referral sources and other employees to make sure your marketers are operating within the bounds of legal activity.

10. Believing the Government – OIG, FBI, and Government attorneys get promoted for successful fraud cases. Don’t become a “notch on their belt.”

For more information on the legas do’s and don’ts of marketing home health care services, you can contact Liz at:

Liz Zink-Pearson
Pearson and Bernard
Covington, KY

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