Hosting educational programs, some of which can help professionals within the addiction treatment field earn continuing education credit, has long been a way for operators to get their name out and build brand recognition. If such events aren’t structured properly, however, they could put the hosting organization at risk of violating laws related to inducement and kickbacks, many of which carry criminal penalties.
William P. Hoffman, shareholder for the Polsinelli law firm who specializes in advising providers on compliance with healthcare fraud and abuse laws, including the Eliminating Kickbacks in Recovery Act (EKRA), tells Behavioral Healthcare Executive that the legal risk profile of addiction treatment centers offering “professionals weekends” hasn’t necessarily changed specifically because of EKRA, except that the kickback prohibition now applies to addiction treatment centers that bill third-party insurance companies, rather than just Medicare/Medicaid.
“These programs, if not structured appropriately, always presented risk to addiction treatment centers that bill Medicare/Medicaid,” Hoffman says. “This risk has now been extended to addiction treatment centers that bill third-party insurance companies under EKRA. EKRA also lacks a mature regulatory scheme like the federal anti-kickback statute, leaving addiction treatment centers guessing.”
While Hoffman says he can’t definitively list measures that relevant authorities would determine to be a violation, he does have several safeguards that can be implemented to reduce such risk. Here are four steps providers should consider when planning a professional education event:
1. Make the event about education first and foremost, with any associated entertainment clearly ancillary. “An example of a program that would present less risk is your traditional educational seminar over lunch at a hotel—a rubber chicken lunch and a robust educational program,” Hoffman says. “When you move that event to a fancy steakhouse and serve Moët and Chandon, the risk starts to increase.”
2. Be cognizant of the professionals whom you target with your advertising for the program. “What would probably create more risk is if the treatment center sat down and said, ‘Who are our top 10 referral sources? Let’s only invite them and exclude others,’ ” Hoffman says. “However, if the educational program is open to the public and widely advertised to any professional who could receive any sort of internal benefit from the education, your risk decreases.”
3. Don’t track referrals by attendees. “After the education session is complete, avoid tracking the referrals from attendees. This undercuts the idea of a broad education effort instead of an event targeted to specific referral sources,” Hoffman says.
4. Stay local. “If you’re an addiction treatment center in L.A. and you hold the event in L.A., that goes to the educational aspect being primary as opposed to being secondary,” Hoffman says. “The days of ‘let’s take everyone to Hawaii and have a long weekend,’ are long gone.”
Hoffman adds that no one factor is determinative with regards to whether a professional education event is considered to be in violation of relevant laws. “If you don’t implement all four safeguards, it does not mean it’s an illegal arrangement,” he says. “It just means the program is higher risk. We hope that the government clarifies EKRA through the rulemaking process to give providers brighter lines and more certainty, but we’re not holding our breath.”