Lawyers: Hospices must enforce Stark’s law for primary care

Regulators are closely monitoring possible kickback patterns among hospices.

Along with cases of the False Claims Act, kickback violations are among the most common forms of hospice fraud and abuse.

According to Meg Pekarske, a hospice advocate and partner at Husch Blackwell, hospices need to keep a close eye on compliance when it comes to structuring referral mechanisms to ensure they comply with the law.

“False claims cases against hospices can often allege something related to relationships with physicians, such as whether you pay for referrals or how you work with physicians, which can lead to [patient] accepting or retaining ineligible patients,” Pekarske said in a recent episode of the law firm’s podcast. “If you have more agreements with doctors than patients, it may look like what some would call “commercially unsound,” as if you are overpaying for the services of doctors and entering into contracts with them for promotion and referral.”

According to Andrew Brenton, Senior Associate at Husch Blackwell, regulators can focus more on how hospice doctors work as they diversify their services into higher levels of care.

“Many of our hospice clients are exploring ways to move forward and provide non-hospice services, whether it be palliative care, home healthcare services, or just any type of “upward care,” Brenton said in a podcast. “As they delve deeper into this area, Stark’s Law may apply, depending on what specific services they provide or the doctor in this case provides.”

The Stark Act prohibits doctors from referring Medicare patients to other providers with whom they have a financial relationship, according to the U.S. Centers for Medicare and Medicaid Services (CMS).

Certain areas of specialized health services (DHS) under the control of regulators have historically included home health services, durable medical equipment (DME) and supplies, therapeutic services, outpatient prescription drugs, and some hospital services.

To prevent cases of non-compliance, operators must be careful when establishing directional relationships.

“Speaking specifically of the anti-kickback law, if you [a provider] by highlighting certain services and paying for those services at a fixed hourly rate, then I wouldn’t tie compensation directly to hospitalization of patients or certification of patients as terminally ill,” Brenton said. “I think [that] may come as a surprise, instead of paying for hospitalization, you can pay for an assessment of whether a patient is terminally ill and the hospice doctor actually decides whether he or she is ill or not.”

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