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   RE: When your out-of-pocket patient uses Medicaid to pay for prescriptions
 From: Ann-Marie Anderson
 To: Member Forum
 Posted: 12-16-2017 14:31
 Message: Thanks for your response.  You bring up a good point.  There are so many land mines in this area of heath care law.

I think that since the facts and circumstances would be different for each provider/situation, criminal or civil liability would be determined after a fact-based analysis. I also think that the outcome would be depend on several things such as whether there is a financial relationship between the cash-only provider and the pharmacy, lab etc. where he/she referred the Medicaid/Medicare patient?

I have not heard of it being a criminal offense to charge cash to a Medicaid or Medicare patient, if the provider does not bill any other federal or state insurance program (Medicaid) for services for any other patients. If the provider bills federal or state programs for other patients, the free service or lower cost out-of-pocket, reward or down-coding, etc. for another patient could be perceived as remuneration under the Anti-kickback statute. Remuneration, if not de Minimis could be perceived as an inducement if intent can be proven.  I think that on its face, It could be perceived that the provider who gives free service to a Medicaid/Medicare recipient could be making up for the free services by billing the federal/state program in some other way. It also depends on whether there are any Safe Harbors.


"The Anti-kickback (AKS) makes it a criminal offense to knowingly and willfully offer, pay, solicit, or receive any remuneration to induce or reward referrals of items or services reimbursable by a Federal health care program. See section 1128B(b) of the Social Security Act. Where remuneration is paid purposefully to induce or reward referrals of items or services payable by a Federal health care program, the anti-kickback statute is violated. By its terms, the statute ascribes criminal liability to parties on both sides of an impermissible "kickback" transaction. For purposes of the anti-kickback statute, "remuneration" includes the transfer of anything of value, directly or indirectly, overtly or covertly, in cash or in kind"

That being said, this is just my opinion, not legal advice. I did a quick search among HHS OIG Advisory opinions and I have not yet found any fact pattern that fits my situation. A more thorough review may yield other results.

In the meantime, I will check with a few experts in the field and get back to you.

Sorry for my long comment!


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Ann-Marie Anderson
Psychiatric Momentum LLC
Bethesda MD
201-738-5963
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Original Message:
Sent: 12-15-2017 16:21
From: Jean Antonucci
Subject: When your out-of-pocket patient uses Medicaid to pay for prescriptions

Interesting !  In some states  one cannot see Medicaid patients and have them pay cash- illegal  I am told( is that true? Never saw it in print I admit)
 so,  it would be obvious they would try to get their prescriptions paid for who wouldn't   but the prescription coverage is connected to who wrote for it?? I am not helping you I am sorry  Let us  know
The system  gets  more bizarre daily   I confess I am at my wits end


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Jean Antonucci
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Original Message:
Sent: 12-14-2017 23:49
From: Ann-Marie Anderson
Subject: When your out-of-pocket patient uses Medicaid to pay for prescriptions

Hello all,
How do you address the issue where an out-of-pocket patient in a cash-only practice seeks to pay for prescriptions with Medicaid?  Today, I was called by the pharmacist who informed me that Medicaid will not pay for my patient's prescription because I am not enrolled with Medicaid. Has anyone ever experienced this situation?

Thanks in advance for your feedback.

Ann-Marie Anderson



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Ann-Marie Anderson
Psychiatric Momentum LLC
Bethesda MD
201-738-5963
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