Speaker Q&A: Avoid marketing missteps, fines

ATLANTA - Because DME is one of the most regulated industries, health care marketers have more hoops to jump through—and avoid—than others, says Jacqueline Bain, co-founder of Silverman Bain, a health care and business law firm. HME News spoke to Bain, who is co-hosting the Medtrade session, “Implementing a legally proper marketing program,” about which laws you should be aware of and what could happen if you aren’t. 

HME News: What are the major federal laws that govern HME marketing programs? 

Jacqueline Bain: The No. 1, major law that every health care marketer needs to be aware of is the Federal Anti-Kickback Statute. You can't be paid or solicit to be paid in return for referring a Medicare beneficiary for any health care item or service. The second is the Commercial Health Insurance Fraud Law, which says you can’t do anything with an intent to defraud a commercial insurance program, whether or not it’s Medicare or private insurance. The last one is the Medicare Beneficiaries Inducement Statute, which basically says, you can't target Medicare beneficiaries in order to sell your product. 

HME: What might happen if you break them? 

Bain: The fines are large. Even if it's just one count, it’s treble damages, which is three times what you've been paid, plus a fine, plus the government's cost of investigations, so it can be enough to put you out of business and really, really hurt you financially in the future. And, of course, it's the government we're talking about, so if your business can't pay, whether or not they come after you personally, it’s something they always have the option to do. 

HME: If attendees leave your session learning one thing, what should that be? 

Bain: The “Everybody's doing it” excuse is not the right way to practice. You just don't know what you don't know. Get (legal) advice before you dive in because you can't put the toothpaste back in the tube once you've done something wrong. It's a worthwhile investment, because a couple of hours of a lawyer's time up front could save a lot of lawyer hours on the back end.