Last year, our office had two health care provider clients who were notified by the California Medical Board that the “pay per lead” Internet marketing contract they signed was in violation of Business & Profession Code Section 650 since there was a payment for each referral that was sent to the provider. The Texas Internet marketing company who proposed the marketing claimed that it had been approved by their lawyers but the company did not provide any legal opinion to the Medical Board. The Medical Board did not discipline any of the numerous providers who signed contracts with this company, but did issue a cease and desist letter.
Health care providers should be more careful if the patients that are being marketed are Medicare or Medi-Cal beneficiaries or if the services marketed are reimbursable under Medicare or Medi-Cal. Further, the intent to induce referrals should be examined and whether fees are only owed if the referred person becomes a patient.
In November 2008, the Office of Inspector General, issued OIG Advisory Opinion 08-19, which addressed whether a specific Internet marketing arrangement directed towards the chiropractic industry violated the anti-kickback statute. The analysis there is quite useful in understanding the federal rules and regulations. See: http://www.oig.hhs.gov/fraud/docs/advisoryopinions/2008/AdvOpn08-19.pdf
As advertising changes with the Internet, health care providers need to be astute so they can avail themselves of the Internet. Potential patients will conduct research on the Internet and this can be very helpful in building a patient base. At the same time, they need to remember that their websites are visible for anyone to see – including health care regulators and investigators. Often complaints are not made by government investigators – but by competitors. Websites should not be misleading (board certifications need to be accurate for example), promises should not be made that could vitiate any signed patient consent forms, and remember that the websites can be used by patients in any future dispute.
Often web designers are not aware of professional rules regarding advertising, referral fees and other regulations. For example, we have seen the Chiropractic Board investigate the use of the term “Dr.” on web pages where the reference “D.C.” was not also present. Make sure your website is compliant with all rules and regulations as part of your sound risk management and compliance.
Any questions or comments should be directed to: firstname.lastname@example.org. Tracy Green is a principal at Green and Associates. They focus a significant part of the their practice on the representation of health care providers and licensed professionals and businesses in civil, compliance, business, administrative and criminal proceedings, with a specialty in health care providers..