By: Jeff Cohen
Concepts that drive sober home relationships like Anti-Kickback Statute, Patient Brokering Act and Safe Harbor have become ingrained in the minds of nearly every addiction treatment provider’s thought process, especially in Florida with the development of the Sober Home Task Force. Providers now seem to fully embrace ideas like–
- There’s a federal law (the Anti-Kickback Statute, the “AKS”) that can bring criminal liability for marketing done incorrectly;
- There’s a state law, the Florida Patient Brokering Act (“PBA”), that can do the same;
- Complying with the federal safe harbors and the bona fide employee exception is important, even when there are no state or federal healthcare program dollars involved;
- Paying anyone for marketing, not just on a commission based sales model, without fully appreciate the applicable laws is dangerous, costly and invites criminal inquiries and liability; and
- Achieving compliance with applicable federal law should be part of any recovery business’ overall compliance plan.
Recovery providers must become familiar with not only the AKS and state restrictions like the PBA, but also the law’s permitted examples, so called “Safe Harbors,” which specify specifically permitted arrangements (42 CFR 1001.952). The “personal services arrangement and management contract” Safe Harbor, for instance, has particular application in the area of marketing, as does the AKS exception for “bona fide employment arrangements,” which apply to “bona fide” W-2 employees (entailing direction, supervision and control), but not independent contractor relationships.
Both the exception and the safe harbor share common elements, that include–
- A written contract specifically describing the services to be provided;
- An actual need for such an agreement (rather than some cloaked way to justify paying kickbacks for patient referrals);
- Compensation set in advance that does not vary based on the value or volume of patient referrals or business generated;
- Compensation consistent with “fair market value.”
Constructing complaint marketing agreements are very fact and risk tolerance sensitivity driven. There is no “one size fits” all. And simply getting an agreement without proper instruction on the law, the landscape and how to properly use the agreement with sober home relationships is a big mistake. Hence, a Gold Standard encounter with a qualified healthcare lawyer on the issue should include at least-
A. A thorough education re the applicable laws and also the prosecutorial environment or “regulatory landscape” with regard to sober home relationships (which may have little to do with applicable law in these days of the Sober Home Task Force). This typically takes 1-2 hours;
B. A detailed exploration of the options and risks associated with each option on a risk spectrum analysis, i.e. the law, the landscape, the options and the risks;
C. Being advised about and offered a number of “features of compliance,” which include (1) a formal, written legal opinion supporting the client’s choice; (2) a safe harbor compliant agreement; (3) independent fair market valuation of the compensation established; (4) operational policies and procedures targeting solely conduct around marketing to ensure regulatory compliance; and (5) specific insurances designed to protect the client on this activity.
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