By: Zach Simpson
As the country reopens in light of COVID-19 many patients are beginning to feel safe to return to practices for services. In an effort to generate additional business to make up for lost revenue many practices have turned to internet-based marketing programs, such as Groupon to help attract new patients. Such sites provide a platform for discounted services, in exchange for a fee to refer patients to those businesses. While every state and business is different, chiropractors need to be aware of the implications of working with such sites while accepting federal health care insurance reimbursements, and the marketing requirements that still must be adhered to that often go overlooked.
When a discount is offered, Groupon customers (in this case, chiropractic patients) pay fees directly to Groupon. The chiropractor is then paid a percentage of the fees collected. Such marketing might affect Federal laws, for patients covered by federal insurance programs. The federal anti-kickback statute (AKS) prohibits any person from knowingly and willfully offering or paying cash to any person to induce the person to refer a patient for services for which payment may be made under a federal healthcare program. While some safe harbors exist, none specifically fit in a case like this.
Splitting the revenues with Groupon may pose a legal problem for chiropractors practicing in Florida as well, under the Florida Patient Brokering Act, which is enforced regardless of payor, and other fee-splitting prohibitions.
In addition, to the potential fee splitting issues described above providers need to be aware that there have been complaints filed by the Department of Health that involve Groupon advertising violations specifically. In one of the most recent cases settled by the Board of Chiropractic Medicine a chiropractic office advertised chiropract services utilizing Groupon. The only language utilized in the Groupon advertisement which we have all seen many times offered a three-visit chiropractic treatment package for his practice valued at three hundred and sixty ($360.00) dollars for forty-six ($46.00) dollars.
Upon review of the advertisement a two-count complaint was filed against the chiropractor who owned the practice.
Count I alleged that the chiropractors’ advertisement on Groupon was misleading or deceptive, because it failed to identify the chiropractor by name and degree as the chiropractor providing advertised treatment which is a violation of Section 460.413(1)(d), and Rule 64B2-15.001(2)(b) Florida Administrative Code.
Count II alleged that the chiropractor’s advertisement violated Section 456.062, Florida Statutes for failing to include a statement that appeared in capital letters clearly distinguishable from the rest of the text that, “THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT THAT IS PERFORMED AS A RESULT OF AND WITHIN 72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT.”
The requested imposed penalties for the violations included suspension of the chiropractor’s license, restriction of practice, imposition of an administrative fine, issuance of reprimand, placement of the chiropractor on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief the Board deems appropriate.
At the final hearing, the following multiple penalties were imposed. The penalties included the issuing of a Letter of Concern, a Two-Thousand Dollar ($2,000) fine, competition of three (3) hours of continuing education in the areas of Florida Laws and Rules and three (3) hours of continuing education in Record Keeping Documentation.
Before entering such agreements or partnerships as described above, be sure to consult with a healthcare attorney to fully understand how arrangements can constitute fee-splitting or kickbacks under the law, and if the marketing is compliant with all rules and regulations to which you are bound, because in the event you don’t speak with an experienced attorney you may expose yourself to significant civil and criminal penalties.