You can’t avoid anti-kickback liability by splitting hairs—at least not when it comes to defining the word “referral”. One physician alleged to have accepted payments for home health referrals tried to argue he never actually made any referrals so the payments couldn’t be illegal kickbacks. That physician said referral should be defined as directing a patient to obtain services from a particular provider. He claimed that since he never told the patient where to get home health services, instead letting the patient choose, he wasn’t paid for referrals. But the government said that interpretation defined the word “referral” too narrowly and the 7th Circuit Court of Appeals agreed. The court said referral also means to authorize services and to facilitate Medicare reimbursement. What happened The physician claimed he never responded to offers from a home health company’s owners for payments in exchange for referring Medicare patients for home health services. But the government claimed that after such offers were made, the home health company began providing services to a few of the physician’s patients every month. The court noted that it was irrelevant whether the physician verbally or otherwise expressed his agreement with the referral scheme because his actions—accepting the…
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