Greg Saikin, AUSA Nate Kummerfeld Offer Insights on Anti-Kickback Statute

Articles / April 21, 2016

Partner Greg Saikin and Assistant U.S. Attorney Nathaniel Kummerfeld, the Eastern District of Texas’s Health Care Fraud Coordinator, authored an article published by the Journal of Health Care Compliance in April 2016. The article, “Anti-Kickback Statute: Are Per-Patient Referral Fees Permissible?,” examines the practical implications of paying referral fees to marketing employees in light of a recent split in case law related to the federal anti-kickback statute’s bona fide employee statutory exception and regulatory safe harbor. Saikin and Kummerfeld conclude:

Without any OIG guidance, or further decisions by other federal courts, we suggest that, when structuring compensation arrangements for marketing employees, providers focus particular attention on mitigating the risks of fraud and abuse … providers should consider compensating marketing employees based on a salary or an hourly wage, rather than a per-patient referral fee. Salaries and hourly wages may provide indicia of a bona fide employment relationship and, unlike per-patient referral fees, may reduce the incentive for referrals to be made without regard to medical necessity.

In determining the marketing employee’s specific compensation, including bonuses, we suggest that providers evaluate a variety of factors, including employee compliance with internal fraud and abuse policies, feedback from referring health care professionals who interact with the marketing employee, and other qualitative performance measures. These are just a few examples of useful metrics. Indeed, providers should seek further guidance — based on their specific operations — to ensure protection under the exception and safe harbor, while also maintaining effective marketing efforts.

Read the article.