Posted by: Robert Markette
March 12, 2006

I read an interesting article in a trade publication today about increasing referrals by improving relationships with physicians. The article mentioned a number of practices, including assisting the physician with submitting claims for oversight.
In the article, the assistance came in the form of printing and highlighting a 485 form. I have heard stories that indicate this practice may go much further. Some home health agencies may actually have their staff preparing the claims paperwork for the physician so that the physician can simply sign the paperwork and submit it.
While printing the 485 and highlighting the necessary billing information may not cause an agency to pause and consider potential fraud and abuse issues, actually completing the form should cause the agency to consisder whether this is a kickback. Anytime you provide anything to a potential referral source, it should raise red flags. If you are providing it for less than fair market value or for free, you should be concerned, because OIG may consider it a violation of the anti-kickback statute.
The Department of Health and Human Services Office of Inspector General (“OIG”) has stated repeatedly that the provision of free services to an actual or potential referral source can constitute a kickback. OIG has specifically stated that placing a phlebotomist into a physician’s office would raise a strong inference of a kickback, if the phlebotomist performed additional tasks that are “normally the responsibility of the physician’s office staff.”
In another case, the OIG stated that a clinical laboratory providing services to a nursing home that included, among other things, reviewing doctor’s orders, reviewing drug regimens, and providing infection control services for free bestowed a benefit upon the recipient. OIG stated that this benefit could constitute prohibited remuneration under the anti-kickback statute, if one purpose of providing the service was to induce referrals.
In the second example from above, the home health agency’s staff would be providing a service to the physician’s office that the physician’s staff would otherwise provide. This service would be provided for free. That is a benefit to the doctor’s office. The physician’s office staff is freed from having to complete the paperwork to bill for physician oversight services, but they can still receive the reimbursement. It’s as if the physician had an extra staff person or two without having to pay any of the costs for that staff.
An enterprising home health agency that does this might argue that they are just trying to be professional. However, it is hard to fathom why an agency would invest their staff time in completing another provider’s paperwork, except to induce referrals. The thinking would be that a doctor is more likely to refer patients to a home health agency if he can bill for his time on oversight without his staff having to complete the paperwork.
Because of this link and OIG’s longstanding skepticism about providing free staff to actual or potential referral sources, I would be very cautious before I started providing clerical services to an actual or potential referral source, unless I could fit the arrangement into a safe harbor.
If you want to provide the physician with information needed to complete and submit claims forms, be careful that is all you are doing. Each step you take to further assist the physician runs the risk of being a step into a fraud and abuse violation.

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