When your marketer is an employee
If a marketer is a legitimate employee of the practice, there typically isn’t a problem.
However, the practice must ensure that it has sufficient control over the marketing and the employee. Therefore, the practice should properly train and supervise marketing employees to confirm that they are in compliance with state and federal regulations.
Essentially, the practice is liable for the employee so it must make sure that the employee is not using abusive or heavy-handed sales tactics. For example, the marketing employee cannot be paying for patients or offering gift cards to patients.
Similarly, a marketing employee cannot provide false information to patients or guarantee specific outcomes from treatment.
It’s important to note that independent contractors do not meet the employment safe harbor. That means independent contractors cannot be paid for marketing on a percentage basis.
To meet the other safe harbor for personal services and management contracts, the marketing compensation must be based on a contract for at least a year where compensation is a flat rate that is fixed in advance and in line with fair market value.
Essentially, the practice should be paying fair market value for legitimate marketing services, such as branding, website creation, search engine optimization and ad campaigns.
The idea is that the practice is not paying for referrals or compensating marketers based on the volume or value of those referrals.
Remember, the purpose of the AKS is to curb overutilization by providers engaged in unlawful schemes to generate referrals. The federal government applies the AKS aggressively, and practitioners should be mindful of the environment in which they conduct marketing efforts.
Therefore, reviewing your marketing arrangements and contracts is a key part of every practice’s basic compliance program.