Take care to avoid appearance of ethical problems
By Elizabeth E. Hogue, Esq.
Commission for Case Manager Certification (CCMC)
When it comes to accepting cash payments from providers in exchange for referrals, there is no question: It is expressly forbidden. But what happens with noncash items, such as the seemingly innocuous gifts that show up around the holidays or the New Year. What are the rules?
The answer is, there are no hard-and-fast rules about nonmonetary gifts to case managers. But that doesn’t mean that case managers can accept anything of any value freely and without giving thought to the ethical or legal consequences. Case managers must be aware of the laws surrounding this issue and should reflect upon their own ethical policies regarding accepting any gift — regardless of value — from providers to whom they make referrals.
There is a federal statute that prohibits illegal remuneration or kickbacks and rebates in Medicare and Medicaid and other federal and state health care programs. Providers who offer or give anything to anyone in order to induce referrals violate this statute. Case managers who receive items from providers who want referrals may violate this law and may be guilty of criminal conduct, which could result in jail, fines, or civil monetary penalties.
That raises the ethical question for case managers: What can be accepted from a provider without violating any regulations? Is a free coffee mug the same as accepting, say, a DVD/CD player?
The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services has stated that regulations will be published sometime in the near future to help define what items of non-monetary value may be accepted from providers who receive referrals. Until that time, however, I believe case managers should follow the Stark laws, which technically apply only to physicians. In essence, these regular regulations prohibit physicians from referring Medicare/Medicaid patients to any facility or firm with which the physician has a direct or indirect financial interest, with some exceptions.
With the Stark laws as a guideline, case managers conceivably could accept free items of a relatively low monetary value if these are provided within reasonable limits. Viewed this way, a coffee mug is unlikely to cause the case manager to overutilize a certain provider. Here are some guidelines to keep in mind:
- The annual aggregate value of nonmonetary gifts should not exceed $300.
- Providers that give nonmonetary items must provide the same items to case managers who make referrals and case managers who do not.
- Compensation is not determined in any way that takes into account the volume or value of referrals to the provider.
Until the OIG issues its regulations, the Stark law will likely provide guidance for case managers. Case managers would do well to continue to monitor developments in these regulations.
In the meantime, however, case managers may want to consider an even stricter guideline: the "no-gift rule." Prohibiting the receipt of any item — no matter how large or small — from a provider eliminates any question. Case managers may wish to post a "no-gift policy statement" in the discharge planning area.
Case managers need to reflect on these issues. Is it necessary for providers to give anything? Why can’t a meeting be held with a provider without lunch being paid for? This is the essence of what I call the "no-crumbs approach" — services can be discussed without the "crumbs" of eating lunch involved. The focus is on business discussions that are conducted in an environment in which professionals can communicate with each other without any unnecessary distraction.
While the no-gift/no-crumb policies may seem harsh, I believe they go a long way to sending an important message to providers: The relationship with case managers is purely professional.
In its column, the CCMC explores ethical issues for various areas of the case management field. They welcome your questions and feedback by contacting them at email@example.com.
[Editor’s note: Elizabeth E. Hogue, Esq., is a Burtonsville, MD-based attorney who is an expert in case management issues. The CCMC has awarded the certified case manager (CCM) credential to more than 26,000 case management professionals since 1992. The CCMC is the only certifying body for case management professionals that is accredited by the National Commission for Certifying Agencies. URAC also has determined that the CCM credential is a recognized case management certification.
For more information or to obtain an application for the CCM, contact the CCMC at (847) 818-0292 or see the web site at www.ccmcertification.org.]