Medical Director Compensation and Compliance
Compensation to medical directors has become a 'hot-button" compliance issue. If not properly structured and monitored, a medical director arrangement can become a major compliance problem. Health care attorney John Fisher discussed some of the recent cases addressing medical director compensation and what they mean to health care providers.
Risks of Excessive Payments Under Medical Director Agreements
Physician compensation is changing along with the reconfiguration of payment incentives within the health care industry. Physician compensation issues may be one of the biggest issues affecting the relationship between health care systems and physicians as these changes continue. These changes are reflected in a number of recent decisions that provide some guidance on the legal topics that affect physician compensation.
One of the most important laws that affect physician compensation for physicians who are employed by a health care system is the Federal Stark Law. The Stark law prohibits financial relationships between physicians and other providers to which the physicians make referrals for "designated health services." It is fair to say that virtually every relationship between a physician and a hospital will involve the referral of designated health services. Therefore, the Stark Law will nearly always come into play and the payment pursuant to the employment agreement must be structured to comply with the Stark Law.
The Stark Law is a strict liability statute and does not require a showing of intent to violate its terms. It is implicated based on referrals unless there is an applicable exception that applies to the referral arrangement. In the case of employed physicians, there is an exception that covers bona-fide employment relationships that can be used to exempt the relationship provided that all of the conditions of that exception are strictly followed. A bona-fide employment relationship must meet all of the following requirements:
- The employment must be for "identifiable services";
- The amount of remuneration must be consistent with fair market value;
- The amount of the remuneration cannot be determined in any manner that takes into account the volume or value of referrals by the referring physician;
- The compensation must be "commercially reasonable" even if no referrals were made between the physician and the organization.
The recent cases have focused on the issue of "fair market value" and "commercial reasonableness" of the compensation paid from the hospital or health system to the employed physician. These cases provide some guidance and parameters to examine when negotiating physician compensation. However, the factual situations in the recent cases are unique and the extent that they will be of guidance to any specific compensation issue is uncertain.
The most recent case United States v. Campbell, 2011 U.S. Dist. LEXIS 1207 (2011) and arises out of the United States District Court of New Jersey. The case involved the University of Medicine and Dentistry of New Jersey (UMDNJ) which was at risk of losing its Level I Trauma Center license due to a shortage in the number of cardiac procedures performed at the facility. In order to secure its Level 1 Trauma Center status, UMDNJ developed a recruitment initiative directed towards increasing the number of cardiothoracic patients being served at the hospital. This initiative focused on entering part-time employment arrangements with local cardiologists who were in a position to refer cardiology patients to the hospital.
The part time arrangements involved entering Clinical Assistant Professor Agreements with these cardiologists which enumerated a list of teaching, lecturing and research activities that the physician were to perform. The physician in turn received salaries ranging from $50,000 to $180,000 per year. The physician at issue in the case, Dr. Campbell, entered a part time employment agreement to perform a specific list of teaching related services for UMDNJ.
The US Attorney brought charges against Dr. Campbell and UMDNJ based upon alleged violations of the Stark Law and the Anti-kickback Statute. The government contended that the primary service actually performed by Dr. Campbell under his part time employment contract was to refer cardiology patients to the hospital and that the contract was actually a sham arrangement designed to cover up payments for referral of cardiology patients. Through the process, a federally appointed monitor reviewed the arrangements and concluded that the hospital's program was an illegal device to compensate cardiologists for patient referrals.
The Court in the case was faced with deciding whether the case should be dismissed for failure to state a claim. In refusing to dismiss the claims made by the government, the Court analyzed the Stark Law employment exception which requires that the payment of compensation to an employee who is in a position to make referrals for designated health services be at fair market value for the services that are actually provided and that the arrangement be commercially reasonable.
The Court refused to dismiss the case noting that if "there was no requirement to actually perform the duties of [the contract] then the compensation could not be the fair market value for those services...." The Court concluded that the payment above fair market value for the services that were actually required to be performed would serve some other purpose, such as compensation for referrals. In the Court's opinion, the excess payments would violate the Stark Law and would make claims made to Medicare for those services false claims.
This case points out an important point under the Stark Law fair market value employment exception. Even though there might be a detailed listing of obligations under a contract, there must be some assurances that those services are actually provided. If the services are not provided, the excess compensation will be considered to be for another purpose such as the inducement for referrals. As a compliance matter, health care organizations should monitor their contracts to assure that the specific services are actually being performed. The employed physician and the facility have equal interest in assuring this as both would be in violation of the Stark Law if the services are not provided.
A recent criminal case under the Anti-kickback Statute provides another illustration of the risks associated with medical director agreements that are not properly monitored or, in extreme cases are entered for improper purposes.
The recent criminal case of United States v. Borrasi further reinforces this point and illustrates that there are cases where “sham” medical director payments can lead to criminal liability under the federal anti-kickback statute. In Borrasi, a physician was convicted criminally under the Anti-kickback Statute for conspiring to receive bribes from a nursing home for referring patients to the facility. The jury found that the physician and others were placed on the organization's payroll as "service medical directors." They were provided with compensation for a list of services that, according to testimony at trial, they were never really expected to perform. There was also testimony from employees that the "medical directors" were rarely seen around the facility and that time reports had been falsified in order to make it appear that they performed services at the facility.
In addition to compensation for what were found to be "sham" medical director services, the nursing home also paid for a secretary for the physician's company and paid lease payments for the building owned by the physician. There was also testimony that the physician had said to others that he was receiving "free money" from the facility.
From the published case, it appears that the facts in this case were extreme. However, the case holds value because it further indicates the risks involved with medical director contracts. In this case there were criminal consequences for the "sham" medical director agreement. In Borrasi, the government carried its burden of demonstrating that the payments were intended to induce referrals. In order to prove a criminal conviction, the government must show that "intent" to induce referrals was one of the purposes for the payment arrangement.
Cases where intent cannot be proved may still lead to liability under the Stark Law. Although no one goes to jail under the Stark Law, the financial consequences can be severe and involve repayment of reimbursement and civil penalties. Penalties are not inconsequential and can be large enough to cause a great deal of financial damage to the party who is found to be in violation.
ABOUT THE AUTHOR: John Fisher, JD, CHC
Mr. Fisher is an experienced health care and compliance attorney. He advises healthcare providers nationwide on the regulatory and business aspects of health care.
Copyright Ruder Ware
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.