Federal and state anti-kickback and physician self-referral laws prohibit the offer or payment of any compensation to any party for the referral of residents. All physician agreements shall be reviewed and approved by legal counsel prior to execution to avoid violation of federal anti-kickback or self-referral laws. Similar state laws also may apply.
Providers may wish to include the following suggested elements in their corporate compliance policy. To comply with applicable laws regarding resident referrals, [PROVIDER]:
- Shall comply with the policies governing gifts set forth in this compliance manual;
- Shall not accept or solicit a referral from a physician to an entity in which the physician (or an immediate family member) has a financial relationship (broadly defined to encompass any ownership interest, investment interest, or compensation agreement) for a designated health service as defined in 42 USC Part 1395nn(h)(6), except as permitted by law. Designated health services include:
- Clinical laboratory services;
- Rehabilitation services including Physical Therapy, Occupational Therapy and Speech Language Pathology services;
- Radiology and other imaging services including magnetic resonance imaging (MRI); computerized axial tomography (CT) scans, PET scans, and ultrasound services;
- Radiation therapy services and supplies;
- Durable medical equipment and supplies;
- Parenteral and enteral nutrients, equipment, and supplies;
- Prosthetics, orthotics, and prosthetic devices and supplies;
- Home health services;
- Outpatient prescription drugs;
- Inpatient and outpatient hospital services; and
- Nuclear medicine services.
In addition, physician agreements:
- Shall be in writing;
- Shall be approved by legal counsel or his or her designee prior to execution;
- Shall be negotiated only by [legal counsel, the facility administrator, owner(s)] or their designees;
- Shall be signed by all parties;
- Shall, when taken as a whole, be reasonable in its entirety;
- Shall specifically describe:
- The services to be performed [full or part time, position description and scope of authority; reporting relationships, skills necessary, licensing or certification requirements, and performance requirements for bonus];
- The method of compensation [annual, per diem or hourly; units of compensation tied to units of the structure of the relationship and incentive compensation related to service performed]. Supporting documentation should be reviewed and retained;
- The amount to be compensated which is supported by a fair market value (FMV) analysis. FMV determination can be made by assessing multiple sources of objective data such as professional organization salary surveys (i.e., Medical Group Management Association [MGMA]), proprietary physician surveys from consulting firms, telephone surveys, public records and historical compensation information. Incorporate the specific needs of the arrangement and any other special circumstances affecting compensation. Supporting documentation should be reviewed and retained.
- Shall not take into consideration the value or volume of referrals provided to [PROVIDER]; and
- Shall be for a term or at least one year.
[PROVIDER] shall ensure that any physician with whom an agreement is executed, and/or who serves as an attending physician in the facility, has current valid licenses as required by law and has not been excluded from participation in the Medicare and Medicaid programs.