NOV-DEC 2018

MedEsthetics—business education for medical practitioners—provides the latest noninvasive cosmetic procedures, treatment trends, product and equipment reviews, legal issues and medical aesthetics industry news.

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LEGAL ISSUES | By Allyson Avila Giving and receiving gifts is a normal occurrence in most people's personal and professional lives. Yet, physicians are restricted from most forms of gift giving and receiving under both state and federal regulations. The federal Anti-Kickback Statute ("AKS") prohibits soliciting, offering, giving or receiving remuneration in ex- change for referrals for items or services covered by federal healthcare programs unless the arrangement fi ts within a regulatory exception. Gifts of nominal value are gener- ally acceptable. However, there is no defi nition of what is meant by nominal. The AKS does not expressly apply to re- ferrals for private pay business, but the Offi ce of the Inspec- tor General, Department of Health and Human Services (OIG), has warned that offering remuneration to obtain private pay referrals may also induce federal program busi- ness and thereby violate the AKS. Offering gifts to induce or reward private pay business may also violate state laws prohibiting kickbacks, rebates and/or fee splitting. The federal Stark Law, also known as the physician self- referral law, prohibits referrals between physicians and entities with which they have a fi nancial interest. Giving and receiving gifts can constitute a fi nancial relationship. Stark does contain a limited exception that allows an entity to give unsolicited nonmonetary gifts (not cash or cash equiva- lents) of up to approximately $300 per calendar year, which is adjusted annually for infl ation, if the gift does not take into account the business generated by the physician and otherwise does not violate the AKS (i.e., not one purpose of the gift is to generate or reward referrals). Medical staff gifts have a limit of $25 per gift, adjusted each year, with no aggregate limit. In addition, the gift may not be solicited by the physician or your staff. Other rules under the Stark Law include: (a) amount of the gift cannot be determined in a manner that takes into account the volume or value of referrals; (b) the gift must not violate the AKS; and (c) cash and cash equivalents are strictly prohibited, as are gifts or free items offered to group practices (e.g., medical equipment), even if the thresholds are not exceeded in the aggregate. Particularly suspect are gifts given after each referral, or after a particularly suc- cessful referral. Some state statutes also contain mini-Stark Laws that prohibit similar actions. In short, you should not give or accept gifts to or from referral sources (especially those referring federal pro- gram business) unless the gift is truly nominal, is clearly and completely unrelated to past or future referrals or is very unlikely to infl uence referrals. Gifts from Vendors The AKS also applies to gifts offered by vendors. The stat- ute prohibits providers from soliciting or receiving gifts as a reward or in exchange for referring federal program busi- ness to the vendors. As with other gifts between referral sources, you should not accept gifts of more than nominal 26 NOVEMBER/DECEMBER 2018 | MedEsthetics © GETTY IMAGES Giving and receiving gifts poses both ethical and legal concerns for physicians. ACCEPTING GIFTS

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