Recently, a number of home healthcare agencies have received subpoenas and/or other contact from the Federal Bureau of Investigation. The Office of the Inspector General and the FBI have been increasing their enforcement actions in an effort to eliminate abuse within the Medicare Program. Their focus is in the areas of Anti-Kickbacks and Stark Law violations.

The Stark Law prohibits a physician from referring patients for Medicare services to any entity of which such physician has an interest (either ownership or contractual relationship). The Anti-Kickback provisions prohibit a provider of home health services from paying a referral to individuals who refer patients for home healthcare services. It is important to understand that what may appear to be immaterial perks or benefits provided to a patient or referral source may in fact constitute a violation of these statutes. For example, satisfying a fee for a home physician visit on behalf of your home healthcare patient could violate the Anti-Kickback provisions. In addition, providing free services either to nursing homes and/or their patients could also violate the Anti-Kickback provisions. The statutes do not require the kickback to be made in the form of cash to constitute a violation.

Home healthcare companies should evaluate their relationships with physicians and/or any marketing programs that they currently engage. Home healthcare companies should ensure that any of their conduct and/or agreements fit within the explicit safe harbors set forth under applicable regulations. A written agreement could be enough to prevent certain conduct from being a violation of the Anti-Kickback or Stark Law provisions and protect you from the FBI and/or Office of the Inspector General.