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Where finances prevent a patient from receiving medical attention, physicians may be tempted to provide the required funds directly to the patient or by waiving the patient’s cost-sharing obligations.
Physicians are charged with caring for the sick. What, exactly, does that mean? Is it sufficient just to provide accurate medical advice or are physicians responsible for ensuring that patients abide by it? Where finances prevent a patient from receiving needed medical attention, physicians may be tempted to intervene by providing the required funds directly to the patient or by waiving the patient’s cost-sharing obligations.
While physicians may think helping patients in need is a noble endeavor, they should bear in mind the old adage, “no good deed goes unpunished.” Providing such assistance is not without some legal risk.
In New York, for example, it is considered misconduct to exercise undue influence on a patient for the financial gain of the physician or a third party.
This prohibition specifically includes “the promotion of the sale of services, goods, appliances, or drugs” by the physician. Physicians who give patients money to pay for prescription drugs, medical procedures or insurance premiums may violate this law where the specific goods or services are unattainable absent the physician’s intervention.
Providing such funds could be considered an exercise of undue influence resulting in the purchase of goods or services by the patient which financially benefits a third party, or possibly the physician, should the patient return for additional treatment.
Both the federal anti-kickback law and the federal civil monetary penalties law prohibit healthcare providers from making payments to induce a referral of business that is paid for by a federal healthcare program. Physicians treating patients insured by a federal healthcare program, and who give money or routinely waive those patients’ cost-sharing obligations may be held liable under either or both of these laws.
By engaging in such behavior, the physician is effectively paying the patient to refer him or herself back to the physician for more treatment.
The U.S. Department of Health and Human Services views the routine waiver of cost-sharing requirements under Medicare and Medicaid as fraud. Similarly, the New York State Insurance Department Office of General Counsel issued numerous opinions, stating that such waivers may be considered insurance fraud.
Physicians should tread very carefully when considering whether to provide financial assistance to patients.
Before providing financial assistance to patients, physicians should consult with a healthcare attorney to develop a charity care policy for the practice that will establish guidelines.
It is important to note that one-time gifts, whether in the form of cash or cost-sharing forgiveness, are unlikely to trigger scrutiny by an oversight agency. Importantly, should the physician become subject to scrutiny, adherence to a properly drafted charity care policy likely will be a mitigating factor and can potentially insulate the physician from liability.