To comply with the federal anti-kickback and physician self-referral (Stark) laws, all agreements between [PROVIDER] and a hospital, home health agency, hospice, managed care organization or alliance, or other entity that involves the referral or transfer of any resident to or by [PROVIDER] shall be reviewed by legal counsel or his or her designee prior to execution. Similar state laws may also apply and should be reviewed so that all such leases comport with state law as well.
Note: The following provisions are based on federal law. Providers should also examine state law and include any necessary language.
Providers may wish to include the following suggested elements in their corporate compliance policy. Any such agreement:
- Shall be in writing;
- Shall be negotiated only by legal counsel and/or the [facility administrator, owner(s)] or their designees;
- Shall be approved by legal counsel or his or her designee prior to execution;
- Shall be signed by all parties;
- Shall specify all of the obligations of the parties;
- Shall specify the fee or payment, if any, which shall be set at fair market value for the items or services provided;
- Shall, when taken as a whole, be reasonable in its entirety;
- Shall not take into consideration the value or volume of referrals provided by or to [PROVIDER] except as is specifically permitted by the “safe harbors” found at 42 C.F.R. Part 1001.952;
- Shall not involve free or discounted goods or services or goods or services below fair market value to induce a referral to or by [PROVIDER] except as specifically permitted by the “safe harbors”; and
- Shall not involve the referral or transfer of any resident to or by [PROVIDER] to induce the other party to refer or obtain referrals or residents from [PROVIDER].
Referrals To Or By Hospices
[PROVIDER] is committed to making available appropriate hospice services to resident who elect hospice coverage.
Providers may wish to include the following suggested elements in their corporate compliance policy.
For residents who are eligible for hospice benefits under Medicare or Medicaid, [PROVIDER] and employees shall:
- Provide services pursuant to a written agreement with a hospice program that meets the conditions of participation for hospices (42 CFR Part 418) upon evidence that the resident qualifies for and has properly elected the hospice benefit;
- Develop and implement, in conjunction with the hospice program, a coordinated plan of care;
- Bill the Medicare and/or Medicaid programs only for the treatment of conditions unrelated to the terminal illness; as permitted by law;
- For residents eligible for Medicare hospice benefits and Medicaid coverage of the resident’s room and board, [PROVIDER] shall not accept payment by a hospice for room and board provided to a hospice resident in excess of the amount that [PROVIDER] would have received if the resident had not been enrolled in hospice. Any additional payments from the hospice for items and services purchased from the facility must represent the fair market value of such additional items and services actually provided to the resident that are not included in the Medicaid daily rate;
- Provide only those services [PROVIDER] is allowed to provide to hospice residents under applicable law (see Note below); and
- Not engage in any arrangement in which [PROVIDER]offers, accepts, provides, or receives free services to or from a hospice in exchange for a promise or agreement to refer nursing facility residents to the hospice; or vice versa.
Note: Federal law expressly requires that a hospice provider provide certain core services, either directly or under contract. The OIG has expressed concern that other providers, including nursing facilities, may be providing some care services the hospice is required to provide.