FEBRUARY 28, 2005
VOLUME 2 NO. 4
 

Doctor kickbacks: just how illegal are they?

That depends on where you live. In Nova Scotia and PEI there's
nothing on the books against it. Elsewhere, tread carefully


Late last fall, Dr Daniel Poulin sued Jean Coutu Pharmacy and the Quebec College of Physicians over what he alleges was a $500,000 bribe offered to him by the drugstore chain to relocate his clinic over a new store they were planning in Saint Constant, Quebec. He charged Jean Coutu of fostering unfair competition. Dr Poulin told the CMAJ that the reason the College was included in the suit was that, "when the College says discounted rent isn't a conflict of interest, it's false."

The case focuses attention on a subject that gets scant coverage: doctors and kickbacks. The question isn't whether they happen. They do. Have you ever taken a present from a patient knowing — in the back of both your minds — that for some, preferential treatment was expected? Hummm. The question becomes what's ethical and, farther along the curve, is it legal? Unlike Dr Poulin, few physicians ever want to go to court to find out.

Not that going to court in Canada with a case related to kickbacks is all that easy. The regulations vary considerably province to province. Still, there is sufficient consensus that a list of no-nos that errs on the conservative side is possible. Better safe than sorry isn't a bad policy when it comes to bribes, kickbacks and out-and-out fraud.

DON'T CHEAT THE PROVINCE
What you don't want to do is fiddle with your provincial billing. Making claims for procedures you didn't do or for patients you never saw will put you on the wrong side of the law in whatever province. Insurance companies take an equally dim view of this sort of thing and are a highly suspicious group. They especially don't like claims from physicians for services they didn't perform. To read some purple prose on the subject, type "doctor+insurance+fraud" in your nearest search engine. When it comes to other sorts of payoffs, only Nova Scotia and PEI have no regulations whatsoever. As for the rest, it depends on the nature of the kickback.

REFERrALS WITH BENEFITS
Independent Health Facilities are the current kickback of choice. In a nutshell, you refer patients to a lab for tests, to physio, for massage, acupuncture, or any other procedure and you receive a 'fee' from the provider of the service. The regulations also apply to self-owned facilities. What the regulators look for, in these cases, is extra use of a self-owned facility. If your peers generally refer 4.4 patients a week for x-rays and you send seven a day to the lab you own down the street, you could be in trouble. Only BC — and naturally Nova Scotia and PEI — have no regulations forbidding such practices.

DOCTORS AND OTHERS
Again, all provinces except BC, NS and PEI have specific regulations against it. On a slightly brighter note, Manitoba and Newfoundland don't actually have statutes on the books against physicians who pay kickbacks. Though those who accept them are subject to prosecution, again, depending on where you live and what you did.

Take a kickback from a pharmaceutical and medical device supplier and you "go directly to jail and do not collect $200."

OFFICE/CLINIC RENTALS
This is the one Dr Poulin has a problem with. The idea is that if you rent a facility from someone you're doing business with, you have to pay the fair market value in rent. Only Saskatchewan, Manitoba, Ontario and Newfoundland have specific regulations forbidding such activity. Quebec prohibits it if the kickback, "would jeopardize...the professional independence" of the physician. So it's not entirely clear how the court may rule in the Poulin case.

AVOID THE SCAM
When all is said and done, provincial regulations, on the surface, appear to give the would-be kickbacker or kickbackee some wiggle room given where you practice. Rule of thumb: if it feels like a scam, it is a scam and you risk finding yourself in court even if it is only the court of good conscience.

 

 

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