Physician signatures on a Form 485 certification/recertification for home care services is a referral.
On February 10, 2015, the Seventh Court of Appeals decided the matter of U.S. v. Kamal Patel, No. 14-2607, upholding the conviction of a physician for violating the anti-kickback statute. The physician was sentenced to eight months imprisonment and ordered to forfeit $31,900 of kickback payments. The physician argued that he did not personally refer patients to a home health care provider. The physician’s patients selected the home care services provider after being given brochures for an array of various providers by the physician’s medical assistant. However, one home care provider paid the physician each time he signed the Form 485 certifying a new admission and for each signed recertification for that provider.
The court held the doctor was the gatekeeper and even though it seemed the home care was medically necessary, the purpose of the anti-kickback statute is to prevent Medicare and Medicaid fraud. Because the physician received payment each time he signed a Form 485, the danger of fraud at the certification and recertification stages was apparent with the potential both for increasing cost of care and undermining patient choice. The Court held this was the type of conduct Congress intended to criminalize by enacting the anti-kickback statute.
Lesson to be learned – doctors taking payments from home care providers for signatures on certifications/recertifications risk imprisonment and fines for violation of the anti-kickback statute.
The government takes anti-kickback statute matters very seriously.
By Denise Bloch
