How to educate employees about kickback rules
One of the main responsibilities of every compliance officer is to educate managers, clinicians, and executives about what constitutes a kickback. "In many instances, they are going to see deals, arrangements, and proposals that you will never see," says health care attorney Donna Thiel of Morgan Lewis in Washington, DC. "It is important for them to understand what the rules are and how to identify a kickback scenario."
For several reasons, some providers and practitioners discount the significance of anti-kickback laws. "There are really two reasons," she says. "They often don’t understand how broad the statute is, and they don’t know how much trouble they can be in."
In order to stimulate individuals to understand the applicable principles, Thiel recommends compliance training should stress the civil penalties that can apply to them in the form of fines and exclusions in addition to criminal penalties. "I have found that to be a very important issue, particularly for clinicians who cannot envision being involved in a criminal prosecution," she says. Helping nurses or physicians understand that they can be excluded from all federal health care programs helps drive home the fact that kickbacks are a problem, she says.
Thiel says it’s equally important that executives understand that corporations also can be excluded. Some executives may think that enforcement is just a matter of paying fines. Educating them that board members, owners, and executives, some of whom may not even be on the front lines of operations, also may be scrutinized during these investigations likely will increase their level of interest in the compliance process.
It also is important for executives to understand that kickback cases often are not litigated on the facts, says Thiel. The threat of exclusion, not only for the violating company but potentially for other companies owned by the same parent, is a "very powerful tool" to encourage executives to pay close attention to compliance training.
"Many kickback cases pursued by the government are often based on theories, some of which are valid and some of which are absolutely ludicrous, which prosecutors are using to force people into settlements," argues former U.S. Attorney Michael Kendall of McDermott Will in Boston.
He says the government often finds a kickback issue or False Claims Act issue and uses that as a wedge to get into the institution and have the provider sign a settlement agreement that concedes issues far beyond what would ever be sustained in court.
In addition, Thiel says many health care practitioners do not understand how broad the kickback statute can be. "Any kind of reward or incentive or encouragement in return for referrals can implicate the statute, says Thiel. One problem compliance officers often have in communicating this message to employees is that "kickbacks" are, in effect, common in the business world. "There are real-life’ kickbacks such as cash-back credit cards and frequent-flier miles," she explains.
Medicare providers are treated differently for two reasons. First, Medicare does not want to pay the cost of kickbacks. Second, Medicare does not want judgments about medical care clouded by financial incentives. "It is one thing for Sears to encourage you to shop there because they are giving you a discount on a washing machine," she explains. "It is another thing to have your physician’s decisions about your medical care clouded by the judgement of financial incentives."
Once employees understand these basic concepts, compliance officers may find their audiences more sensitive to arrangements that could constitute kickbacks. "They are going to see a lot of proposals for arrangements that never get to your desk or the general counsel’s desk," Thiel asserts. "The people in operations are the ones who are writing contracts, formulating arrangements, and working out deals, so their ability to identify potential problems is critical."
"Be sure they understand the deal," she says. "You really have to understand where the money is going in any arrangement in order to analyze the kickback." That means not only following the flow of cash and who is paying whom, but understanding how an entity is being reimbursed (i.e., fee schedule or prospective payment system). "It also means you understand all the benefits that are involved in a particular contract."
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