05/16/2015

Referral Programs

By Keith Kerns, Esq.

In an effort to increase patient visits, many offices offer incentives to current patients who refer friends and family to the office.  Optometry offices which engage in this practice should be aware of a key provision in Ohio law before instituting such an incentive program.

Ohio has maintained an anti-kickback law for many years.  The law is intended to help protect patients and healthcare payers against fraud and abuse and to prevent financial incentives from influencing health care providers treatment recommendations and decisions.  Though the focus of the law is seemingly meant to address provider-to-provider and agent/broker-to-provider referral corruption, the law is written broadly and actually applies to everyone.  Therefore, offices that are considering establishing a referral incentive program for current and new patients must be familiar with this law in order to avoid pitfalls.

Ohio Revised Code section 3999.22 makes it illegal for anyone to “knowingly solicit, offer, pay, or receive any kickback, bribe, or rebate … in cash or in-kind, in return for referring an individual for the furnishing of healthcare services…for which whole or partial reimbursement…may be made by a healthcare insurer.”  Any violations of this section are considered felonies under the law.

Despite this broad prohibition against any kind of payments – gift cards, cash, gifts, etc. – in exchange for referrals, there are several important exceptions outlined in the law which may still allow offices to pursue a patient referral program.  First, the law excepts those referral payments that are authorized by an health insurance contract and does not apply to deductibles or copayments.  The law also does not apply to a health care practitioner who provides services that are not covered by the patient’s health insurance plan.

Finally, and most importantly, the restriction does not apply to the offering of discounts or reductions in prices.  This exception provides a simple avenue for optometrists to offer incentives to patients who refer their friends and family into the practice.  A discount off of future services, or new pricing structures for certain procedures can be offered in exchange for the referral of new patients under Ohio law.

Optometrists seeking to step up their marketing campaign and attract new patients are strongly encouraged to seek advice from legal counsel prior to instituting a referral incentive program or an advertising campaign to discuss these issues and avoid any difficulties which may arise.