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Enforcers Continue to Target Discharge Planners/Case Managers

Guest Article Provided by Elizabeth Hogue, Esq.

Case managers/discharge planners continue to come under fire from fraud enforcers for violations of the federal anti-kickback statute. This statute generally prohibits anyone from either offering to give or actually giving anything to anyone in order to induce referrals. Case managers/discharge planners who violate the anti-kickback statute may be subject to criminal prosecution that could result in prison sentences, among other consequences.

Owners of a home health agency and a hospice recently pled guilty to one count of conspiracy to commit health care fraud, and one count of conspiracy to pay and receive health care kickbacks. According to court documents, the owners paid and directed others to pay kickbacks to multiple individuals for patient referrals from at least July, 2015, through April, 2019. Kickbacks were paid to employees of health care facilities as well as to employees’ spouses. Specifically, kickbacks were paid to:

  • A registered nurse who worked as a discharge planner/case manager at a local hospital
  • The director of social services at a skilled nursing facility (SNF) and assisted living facility (ALF)
  • The director of social work at another SNF

In total, the owners submitted over eight thousand claims to Medicare for home health and hospice services. The Medicare Program paid the providers approximately $31 million. Of this amount, Medicare paid over $2 million for services provided to patients who were referred in exchange for kickbacks. Because the referrals were obtained by paying kickbacks, the providers should not have received any reimbursement from the Medicare Program for services provided to these patients.

In separate cases, the hospital discharge planners/case managers and social workers who received kickbacks pled guilty to receipt of kickbacks. They await sentencing.

The Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS), the primary enforcer of fraud and abuse prohibitions, says that discharge planners/case managers and social workers cannot accept the following from providers who want referrals:

  • Cash
  • Cash equivalents, such as gift cards or gift certificates
  • Non-cash items of more than nominal value
  • Free discharge planning services that case managers/discharge planners and social workers are obligated to provide

Discharge planners/case managers and social workers provide extremely important services that are valued by many patients and their families, but their credibility and trustworthiness is destroyed when they make referrals based on kickbacks received.

A word to managers and all the way up the chain of command to CEOs: whether or not you know when case managers/discharge planners are accepting kickbacks, the OIG may also hold you responsible. You may be responsible if you knew or should have known. The OIG has made it clear that your job is to monitor and to be vigilant. A good starting point is to put in place a policy and procedure requiring discharge planners/case managers to report in writing anything received from post-acute providers. Or, how about a policy and procedure that prohibits all gifts?!

Now a word to post-acute marketers: do not give kickbacks to discharge planners/case managers and social workers. It is simply untrue that you must give kickbacks in order to get referrals. The proverbial bottom line is: do you like the color orange? Is orange your preferred fashion statement?

Please stop now!


©2022 Elizabeth E. Hogue, Esq. All rights reserved.

No portion of this material may be reproduced in any form without the advance written permission of the author.


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