In Radiology Marketing, a Fine Line Between ‘Creative’ and ‘Illegal’

CHICAGO - Say your radiology practice wants to boost positron emission tomography referrals. Your marketing consultant comes up with an idea: for the first 50 referrals each month, referring physicians’ offices get a Beanie Baby and educational materials, delivered in a plastic baggie emblazoned with your logo. “The P.E.T. of the Month Club,” it’ll be called.

Good idea?

Well, yes and no. Thumbs up for creativity. But it’s a nonstarter, legally speaking.

The scenario, courtesy of longtime radiology-practice marketer Peggy Martin, was among several she presented at a Wedneday RSNA 2011 session dedicated to helping radiology practices creatively – and legally – market their services.

W. Kenneth Davis, a health-care attorney and partner with Katten Muchin Rosenman in Chicago, shared his legal expertise. The P.E.T. of the Month Club, he said, runs afoul with the law – specifically, Stark Law.

The Beanie Baby “benefit” you’d be giving the referring physician, he said, is directly tied to referrals – a no-no per Stark Law, which applies to federal health insurance-related payments. The promotion would violate something called the nonmonetary compensation exception on those grounds, and the Centers for Medicare & Medicaid Services, should they get wind of it, will not approve, he said. They could fine you, and even ban you from its programs.

Many laws can theoretically damper diagnostic-imaging-practice marketing creativity, Davis said. There’s HIPAA/HiTEC, which limits marketing using patient information without their consent; IDTF (independent diagnostic testing facility) standards, which don’t allow the direct solicitation of patients; antitrust law; state laws; even tax-exempt laws that could apply, he said. But the two big ones to keep in mind are the federal anti-kickback statute and the Stark Law, Davis said.

• Anti-kickback law prohibits physicians from knowingly offering, soliciting or receiving kickbacks in exchange for business from federal health-insurance beneficiaries. Violating it is a felony punishable by up to five years in jail. While there are narrow exceptions (discounts to patients and paying commissions to employees is fine) and safe harbors (such as personal service and management contracts and referral services), paying for business is, in general, bad.

• Stark Law is a civil law, and also applies to federal health-insurance beneficiaries, though some states have laws extending something like Stark law to private insurers. Stark Law bans cash or cash-equivalent gifts (think gas cards, gift cards, even Starbucks cards) and sets a $359 annual limit per referring physician (so $3,590 for a 10-physician practice) for noncash compensation.

Keeping that legal backdrop in mind, here are some marketing strategies, courtesy of Martin and Davis, that can help boost business while keeping highly trained diagnostic imaging professionals in front of screens rather than behind bars:

• Facebook scavenger hunts. Radiology, Ltd. in Tucson, Ariz. partnered with five local restaurants, placing promotional signs in them and leaving clues on the Radiology, Ltd. Facebook page.
• Groupon deals for non-Medicare services such as sclerotherapy. Via Vascular in Seattle, Wash., did this with cosmetic spider-vein removal. Six-hundred procedures, priced at $129 rather than the usual $429, sold out in three days. Costs were kept in check by having technicians do the procedures. They used the addresses of those who bought the offer to better understand the geography of their target market and did a follow-on direct-mail campaign. Martin called it “a huge success.”
• Hosted/co-hosted mammography parties, whose goal is to raise awareness of the importance of the procedure.
• CME symposia, the hitch being that, if the course would normally cost something, that patients either pay the fair-market value – or the value of the course is deducted from the Stark Law’s $359 limit for nonmonetary donations.
• Staff education luncheons (costs of food provided should be allocated in a logical, consistent manner among physicians in the practice). Caution is called for, though, when education becomes entertainment. No “educational” trips to Hawaii, please.
• Educational webinars
• Free screening at health fairs
• Useful leave-behind collateral such as authorization guides or radiology ordering guidelines
• Provision of online radiology ordering capabilities
• Paying for integration with a referring practice’s electronic medical record (or, better, those of many practices).