SOTA et al Responses (26) to Question from Maryland
Regarding: Referral Incentives
Received and Compiled by NASADAD Staff on/by March 10, 2009
46. Request from MD, Peter Cohen, 2/20/09:
We have been informed that several OTPs in our State are providing incentives for referral, such as gift cards or treatment fee discounts, to patients that refer other patients to their programs. One provider was told by a CARF surveyor, a senior VP of Gateway Community Services of Florida that this policy was good practice and that they have such a policy in place. Frankly, I think it's unethical and possibly illegal. I assumed that if you accept Medicare, for example, that you cannot give discounts on fees. Furthermore, I think that any program that accepts Federal or State or local monies cannot give discounts or gifts to their patients for rounding up business, because it is a misuse of public monies. Therapeutic incentives are allowed. Please let me know of your experience with this issue.
Has State regulations prohibiting / No regulations(and/or no language provided) and is not known to be occurring / No regulations and practice is occurring / In the process of writing regulationsAR, DC, GA, MD, MN, TN / CT,IA, IL, IN, MA, ME, MI, NV, NY, TX, VT, UT / RI, KS, MI, OK, OR, UT / KY, KS, MD, OK looking into mechanisms but do not fund OTPs
CARF, Bettye Harrison:
Bettye contacted NASADAD to let us know that CARF does not have any stated policy regarding referral incentives, that programs must follow State standards and regulations. She was very interested in learning which States did have policies regulating referral incentives.
AR, Stacy Mullin:
The State of Arkansas has a policy in place that forbids this practice.
3.09.20 The Program shall not use incentives or rewards or unethical advertising practices to attract new clients. This shall not forbid the Program from rewarding clients that maintain exemplary compliance with program rules and their individualized treatment plans.
CT, Peter Rockholz:
Wow. I completely agree with you. This may break out differently between for-profit and non-profit providers. In CT, 95% of OTPs are non-profits. They receive Medicaid, State Administered General Assistance, and SAPTBG funding for MMT. They wouldn't even think of paying bounties. This was, however, a common practice in the '80's during the 28-day rehab boom, when for-profits paid bounties to their "marketing" reps. Shameful and unethical.
DC, Joan Smith:
The District of Columbia’s 29 DCMR 2316.3 rulemaking states, only:
A facility or program shall not offer or pay any remuneration, directly or indirectly, to encourage a licensed practitioner to refer a client to them.
GA, B. Michael Attinello:
The State of Georgia DOES NOT allow incentives for referral or any such "bounty fees"-It is written into our regulations that facilities may not give monetary rewards of any kind for referrals.
IA, Dean Austin:
The rules in Iowa are silent on this issue nor has there been in evidence of it happening.
IL, Richard Weisskopf:
It is the same in Illinois. No current regulations prohibiting and none noted.
IN, Louise Polansky:
Indiana's proposed OTP rules don't contain any requirements concerning referral incentives (we didn't think about this during our process). When I polled our 14 clinics yesterday, all but one of the ten OTPs which responded indicated they do not use incentives. One, which interestingly is based in Rhode Island (Hi, Becky), does use incentives (e.g., refer a friend and get a free week of treatment if the friend remains in treatment 30 days and reduced or eliminated bad debt from prior admission if return to the clinic and remain 30 days). This clinic also provides other treatment incentives, such as for attending individual or group counseling, getting an annual physical or blood work, etc., and being entered into raffles (fish bowl-type) for chance at gas or gift cards. I had been unaware that this was occurring, although about three years ago, when I was first working in this arena, there were concerns that the same program was papering cars at other OTPs in the same county with flyers offering discounts for patients who moved to the other clinic. At that time, we'd researched where the flyers were coming from but never were able to nail down that the clinic was doing this, and the practice stopped.
The clinic which is using these incentives takes part in the federally funded Access to Recovery program (ATR), but I let the director know yesterday that the incentives could not be used for patients enrolled in ATR, and she indicated that she knows this and that ATR patients are not included in any incentive activity. I don't know if a distinction would need to be made with the raffles for taking part in treatment activities and would be interested in other States' understanding of this.
KS, Stacy Chamberlain:
We have had this issue in Kansas so I plan to use some of the language other States currently have in policy. The incentives offered here are: if you refer a client you get to go to the head of the dosing line for a period of time (this seems to be happening if you refer another Medicaid patient), some have offered a discount, etc. I have asked that programs cease this practice but like so many other States, we currently have no regulations to back it up. Thanks to everyone for including language.
KY, Donna Hillman:
I would certainly agree with all those who have spoken. We are in the process of amending our regs and will address this formally via that process.
NM, Olin Dodson
There is a federal anti-kickback statute for certain programs.
MA, Hilary Jacobs
Massachusetts has not heard that these incentives are being employed and have no regulations prohibiting them. However, I agree with all those that see this as an unethical practice and as the SOTA would work to prevent it from happening. Has anyone been in touch with CARF if their representatives are supporting this practice as stated?
I think it is very important to distinguish between referral incentives of any kind (some type of reward that a monetary value can be attached to in exchange for referring a patient and/or an exemption from an otherwise required treatment activity) from contingency management incentives related exclusively to a patient's treatment. Contingency management incentives are evidence based and there have been several presentations at AATOD about this practice and how it has improved treatment outcomes. This would include incentivizing individual attendance, drug free screens, etc, and often takes the form of a "fishbowl" or some kind of small give away. These incentives are tied directly and exclusively to the person's treatment, not their recruiting efforts for the organization. (I am aware of the concern about fishbowl type activities as they relate to gambling and gamblers in OTP treatment, but that is another discussion.)
MD, Peter Cohen:
I was able to find this prohibition in our state:
The Maryland Medical Practice Act allows the Board of Physicians to take action against a physician's license for 40 enumerated acts, including the following:
Health Occupations Article, Sec 14-404(a)
(3) Is guilty of:
(i) Immoral conduct in the practice of medicine; or
(ii) Unprofessional conduct in the practice of medicine;
(15) Pays or agrees to pay any sum to any person for bringing or referring a patient or accepts or agrees to accept any sum from any person for bringing or referring a patient;
This applies to an MD who is in practice or is employed with a program.
ME, Paul MacFarland:
I agree with MA and many of the other SOTAs. Maine has no regulation to prohibit this practice but I agree that it is at the least unethical. I will survey the OTPs here about this issue and strongly oppose the practice of exploiting patients through any kind of incentive to recruit business for the clinic.
MI, Marilyn Miller:
We have had a lot of problems with incentives, mostly free treatment for a week or two for referral to the OTP. We have told them to cease but have no law to back us up. I like the suggestions.
MN, Richard Moldenhauer:
IN MN, we consider this something short of human trafficking. We even address it specifically in our Rule of professional Conduct for Alcoholand drug counselors, found in Admin Rule 4747.1400:
Subp. 4.
Integrity.
An alcohol and drug counselor:
F. must not give or take any commission, rebate, or other form of compensation for the referral of clients for alcohol or drug counseling services or other professional services;…
I. must not knowingly solicit individuals who are receiving drug or alcohol counseling services from another licensed alcohol and drug counselor;
MS, Jessie Wright:
Mississippi does not have an “incentive” program based on monetary rewards for referrals; instead, our system is based on giving information and education so that appropriate referrals can be made when symptoms are met for opiate dependency.
Just a word of caution from one who knows: I worked in the Charter Psychiatric Hospital system for 12 years as a Clinical Assessment Specialist. I never had a problem with the ethical issue of recommending only patients who were appropriate for admission. There were people in other facilities whose livelihoods depended on the number of people they referred for admission. This, as many of you probably know, resulted in the closing of Charter Psychiatric Hospitals all over the country.
NV, Patricia Chambers:
I have not heard of this practice happening in Nevada and we do not have any regulations preventing the practice.
NY, Belinda Greenfield:
NY has nothing in either the current or proposed draft regulations prohibiting this practice, and I know of no such clinic currently doing this in NYS. This e-mail exchange has piqued my interest, while maybe not needing to include in regulations, to provide a guidance document to OTPs - in NYS we call them Local Service Bulletins - where this can be spelled out and explain the difference between referral versus treatment incentives.
THX Peter for bringing this concern to the SOTAs.
OK, Ray Caesar:
This is an ongoing problem in Oklahoma. Not all clinics follow such a procedure but, some do. We have met, within the Department, on several occasions to discuss options to address this and are currently researching possible mechanisms to address this. We provide no funding for the OTPs and that limits our influence.
OR, Jim Bradshaw:
I think a similar practice is going on here in Oregon with some of our clinics. Sounds like it would be a good issue to get more clarification on.
RI, Becky Boss:
This seems to be one of the most responded to questions we have - that must mean something! Rhode Island also has no regulations that prohibit this practice. I do agree with others that it makes sense to discuss this as a group and perhaps develop recommendations. I did not believe that the practice was occurring in RI either, until I mentioned the question to someone who works in the field. Was informed that there is (or was) an OTP doing just that, including offering family discounts.
Amazing what can happen in a state this small without you knowing about it.
TN, Allison Harvey:
TN also has a rule that prohibits the practice, Rule 0940-5-42-.05:
No facility may provide a bounty, free services, medication or other reward for referral
of potential clients to the clinic.
TX, Christine Ramirez:
Texas has nothing in its regs prohibiting this practice, and I know of no such programs that do so.
VT, Peter Lee:
Initial response from Vermont: As Chief of Treatment for the Vermont Division, and State Methadone Authority I offer the following preliminary response. I copied in my Treatment Unit professionals, our legal counsel, and Medical Director to weigh in on this important issue.
Asking clients from a program to refer friends if they are satisfied with services may not be unethical or illegal on the face of it.However, from my previous experience in both public and private practice in Substance Abuse and Mental Health treatmentit is, in my view, unethical and perhaps illegal to offer monetary incentives or any other gratuities to current clients or prospective clients in terms of fees or any other incentive. Certainly, at least in the states I practiced in (New Hampshire and Vermont) Medicaid discounts were not allowed, as I understood it.
It is one thing to say that "I'm glad you are doing well, let folks know I am here" and a totally different thing to say "If you refer friends, I'll give you a break on my fees or see them for a discount, or give you a gift card." I look forward to responses.
UT, Dave Felt:
Utah is in the same spot as Massachusetts and I concur with her position. To my knowledge, none of the clinics in the state are offering incentives, but there are no current regulations prohibiting it.
Second response: Like several of you, I am finding out a lot more is out there than I thought. One of the companies that has four clinics in the state informed me that they are using contingency management incentives, similar to the ones that Hilary references (which I support), but are also providing incentives for both referring someone to the clinic, and if the new person stays over 60 days. Basically they are offering a half week's treatment free at the admission and 60 mark. For those on Medicaid or insurance, they are offering gift cards as an incentive. I'm still waiting to hear from one more clinic.