The Delaware Board of Dentistry and Dental Hygiene is proposing an amendment to its regulations to ban what it characterizes as “fee-splitting.” The proposed amendment provides that a dentist or dental hygienist may be disciplined for “engaging directly or indirectly in the provision or receipt of anything of value for recommending a dentist or hygienist’s services.” The proposed regulation, however, permits the offering or receipt of “office gifts” on a quarterly basis if the value of the gifts does not exceed $1,000 annually and the gifts are “unrelated to a specific referral.” As the federal and state Anti-Kickback statutes generally prohibit offering or receiving anything of value in exchange for the referral of federal or state health care program business, dentists who provide services payable by federal or state health care programs cannot rely solely on the proposed state regulation as a guideline for permissible gift-giving.
The comparison between the Dental Board’s proposed regulation and fee-splitting regulations applicable to other Delaware health care providers is interesting. The Board of Medical Licensure and Discipline prohibits payment of a fee by a physician to another physician who has referred a patient to him, “unless the fee is in proportion to the work actually performed by the referring physician.” 24 Del. Admin. Code 1700 Board of Medical Licensure and Discipline 8.1.9. The regulation, while inartfully worded, seems to provide an exception for the sharing of fees among a physician employer and a physician employee. Otherwise, a physician cannot pay another physician a “fee” for referrals. It is unclear whether a “fee” would include non-monetary gifts. The proposed Dental Board regulation, on the other hand, clearly applies to “anything of value.” Of course, as stated above, federal and state statutes generally prohibit physicians from offering or accepting anything of value in exchange for referrals where payment may be made, in whole or in part, by a federal or state healthcare program.
Delaware physical therapists and athletic trainers are subject to a broad fee-splitting statute which not only prevents them from “transferring fees” to referral sources, but also prevents them from working in the same practice with referral sources, e.g., physicians, as well as any “relative” or “business associate” of a referral source, neither of which is defined in the statute. §24 Del. C. 2616(a)(8). The BMLD regulation does not encompass “relatives” and “business associates.” The proposed Dental Board regulation arguably applies to any scenario where a third person receives or offers anything of value in exchange for referrals on behalf of a dentist or dental hygienist, as it proscribes “engaging directly or indirectly in the provision or receipt of anything of value.”
The Board of Dentistry and Dental Hygiene will hold a public hearing on the proposed regulation on March 17, 2016, and will accept written comments until April 1, 2016. Click here for the text of the proposed regulations and for more information about the hearing and how to submit written comments.