Healthcare providers, more than any other industry are
limited in how they may advertise. State and Federal laws, such as the
anti-kickback statutes and consumer protection laws restrict commission based
advertising, coupons or discounts, and the use of certain testimonials and
guarantees regarding the healthcare providers products or services.
The Anti-Kickback Statutes generally prohibit any payment
to any person who receives renumeration in exchange for a referral of a patient
to a healthcare provider. Penalties under this statute can be both financial and
criminal. In a typical commission
arrangement, a person is paid for providing customers. For a doctor, it would include a person being
paid for referral of a patient. There are limited exceptions. The exceptions require a set fee over a
period of time, unrelated to the number of patients referred. Healthcare providers who wish to start a
program of advertising utilizing referrals should seek legal advice to assure
that the program doesn’t violate this law.
A recent
phenomenon is utilization of website
discounts for medical services. Groupon,
and other “daily deal” sites typically offer patients discounts on
cosmetic care, this can create fee splitting issues that implicate accusations
of providing unnecessary procedures because of the perceived obligation to
comply with a coupon. These issues will be dealt with by the state and federal
government in years to come. Pay per
call or Pay per click arrangements may also implicate issues related to
anti-kickback issues.
Patient endorsements in advertisements can also be
problematical. First, they can be
reviewed for any dishonesty.
Statements must include all good and bad elements of treatment. For cosmetic surgery, reference to an
“easy, outpatient procedure” that does not refer to anesthesia, may be
considered fraudulent. Even the
implication that a procedure on one person will be the same for all patients is
also likely to be disallowed. Such ads can not look like news reports.
More and more healthcare providers are recognizing the
need to increase the number of patients actively seen by their practices. Advertising may provide a method to increase
the medical business, but care must be exercised to make sure such
advertisement pass legal muster.
Submitted by Matthew L. Kinley