Healthcare Providers, Agents, and Brokers: Please Stop, Look, and Listen Before Entering Into Suspect Medicare Advantage Plan Marketing Arrangements

[Duaine]

Special Fraud Alerts

The Office of Inspector General (OIG) of the U.S. Department of Health & Human Services (HHS) issues Special Fraud Alerts regarding healthcare fraud and abuse patterns or practices it has recently identified and intends to investigate and prosecute.

Special Fraud Alerts provide guidance on potential violations of federal fraud and abuse laws, including the federal anti-kickback statute, and encourage the healthcare industry to review internal practices to ensure compliance in the identified risk areas.

MA Plan Payments to Agents and Brokers

Another key compliance risk area involves payments from Providers to agents, brokers and TMOs, such as payments from a Provider to agents and brokers to recommend that Provider to a particular MA enrollee or to refer the enrollee to the Provider.

Agents and brokers who have established relationships with Medicare enrollees may be able to influence those enrollees' Provider selections. The OIG is concerned that agents, brokers, TMOs, and Providers may skew their guidance when providing recommendations regarding Providers or MA Plans based on their improper financial self-interest. The OIG expressed concerns that enrollees were not aware of these financial arrangements and that they may rely on the recommendation of an agent, broker or TMO in making Provider selection decisions that may not best suit their particular needs.

Suspect Marketing Arrangement Characteristics

The OIG developed the list below of suspect characteristics regarding the types of marketing arrangements described above. These characteristics, taken together or separately, could suggest that an arrangement presents a heightened risk of fraud and abuse. This list is illustrative, not exhaustive, and the presence or absence of any one of these factors is not determinative of whether a particular arrangement would be grounds for legal sanctions:

1. MA Payments to Providers or their Staff (Directly or Indirectly Through Agents, Brokers, or TMOs)

• Payments for Referrals: Offering or paying a Provider or their staff remuneration (such as bonuses or gift cards) in exchange for referring or recommending patients to a particular MA Plan.
• Compensation Disguised as Legitimate Payments: Offering or paying a Provider remuneration that is disguised as payment for legitimate services but is intended to be payment for the Provider's referral of individuals to a particular MA Plan.
• Compensation for Patient Information: Offering or paying a Provider or their staff remuneration in exchange for sharing patient information that may be used by the MA Plans to market to potential enrollees.
• Compensation Based on Health Status: Offering or paying remuneration to a Provider that is contingent upon or varies based on the demographics or health status of individuals enrolled or referred for enrollment in an MA Plan.
• Compensation Based on the Volume or Value of Referrals: Offering or paying remuneration to a Provider that varies based on the number of individuals referred to for enrollment in an MA Plan.

2. Provider Payments to Agents, Brokers, or TMOs

• Payments for Referrals: Offering or paying an Agent, Broker, or TMO remuneration (such as bonuses or gift cards) in exchange for referring or recommending patients to a particular MA Plan.
• Compensation Based on Health Status: Offering or paying remuneration to an agent, broker, or TMO that is contingent upon or varies based on the demographics or health status of individuals enrolled or referred for enrollment in an MA Plan.
• Compensation Based on the Volume or Value of Referrals: Offering or paying remuneration to an agent, broker, or TMO that varies based on the number of individuals referred to for enrollment in an MA Plan.

These practices, alone or in combination, represent potentially abusive practices that could implicate the AKS, CMPL, and/or the FCA.[EXTERNAL LINK] - Healthcare Providers, Agents, and Brokers: Please Stop, Look, and Listen Before Entering Into Suspect Medicare Advantage Plan Marketing Arrangements

 

[MedicareWAA]

There was a scary footnote in the OIG alert. I read a nice article about it written by a lawyer who explained why the entire thing was more important than it might seem . It implied the feds are looking at more than just provider stuff and how these alerts are rarely issued. I think the last one that applied to brokers was the genetic testing stuff, where they're STILL sending people to prison because of it. The last one before the testing was maybe 10 years prior. They don't happen often.