Home health agency marketing: referrals, Medicare rules and anti-kickback limits

Most home health patients do not find an agency by searching on their own. A hospital discharge planner, a physician office or a family member usually hands them a short list, often in a stressful week. Marketing for a home health agency is therefore mostly about two audiences: the referral sources who build that list, and the families who choose from it.

Both audiences sit close to federal fraud and abuse law, because a large share of home health care is paid by Medicare and Medicaid. This guide explains the rules that shape what an agency can offer, say and pay, and what tends to work inside them. It does not cover clinical decisions or whether any patient qualifies for care. Physician house call practices are covered in house call practice marketing.

Know who qualifies before you write a word

Families often contact an agency hoping Medicare will cover help at home. Marketing that sets the wrong expectation creates disappointed families and wasted intake calls. The Medicare.gov page on home health services describes the main conditions in plain language:

• The person must need part-time or intermittent skilled services and be homebound. Medicare.gov describes homebound as leaving home not being recommended because of the condition, or needing help such as a cane, wheelchair, special transportation or another person to leave, and normally being unable to leave home, with leaving taking a lot of effort.
• A doctor or other health care provider, such as a nurse practitioner, must see the person in person, confirm the need for home health care and order it.
• A Medicare-certified home health agency must provide the care.
• Medicare does not pay for 24-hour care at home, home meal delivery, homemaker services unrelated to the care plan, or custodial or personal care when that is the only care needed.

Medicare.gov also says the person pays nothing for covered home health services, while 20 percent of the Medicare-approved amount applies to covered medical equipment after the Part B deductible, and that the agency should explain in writing before care starts if Medicare will not pay for an item or service.

For marketing, this means two practical things. First, do not describe personal care or companion services as Medicare covered when they are the only help someone needs. Second, if your agency offers both Medicare-certified skilled care and private-pay personal care, keep them clearly separate on your site, in ads and in brochures, so a family knows which one they are asking about.

The anti-kickback statute in plain words

The federal anti-kickback statute, 42 U.S.C. 1320a-7b(b), makes it a felony to knowingly and willfully offer, pay, solicit or receive any remuneration, directly or indirectly, in cash or in kind, to induce or reward referrals of items or services payable by a federal health care program, or to induce the purchasing, ordering or recommending of them. It applies on both sides: the agency that pays and the referral source that accepts.

OIG’s Fraud and Abuse Laws page explains that remuneration includes anything of value and can take many forms besides cash, and that criminal penalties and administrative sanctions include fines, jail terms and exclusion from federal health care programs. It also notes that the government does not need to show patient harm or financial loss, and that a violation can exist even if the service was medically necessary.

The statute and OIG regulations set out exceptions and safe harbors. OIG says an arrangement must fit squarely in a safe harbor and meet all of its requirements to be protected. One statutory exception covers amounts paid by an employer to a bona fide employee for providing covered items or services. That is why the structure of how marketing staff are paid matters so much in this field.

Where home health marketing runs into the statute

Common activities that call for a careful review by counsel before you start:

1. Paying per referral or per admission: a commission tied to the number of Medicare or Medicaid patients a marketer brings in. The employee exception covers bona fide employees only, and independent contractor arrangements need their own analysis under the safe harbors.
2. Gifts, meals and events for referral sources: OIG lists free rent, expensive hotel stays and meals among the forms remuneration can take. Anything of value given to a discharge planner, physician office or facility staff should be reviewed against the statute.
3. Free services to facilities or physician offices: for example, staff placed in a facility to do work the facility would otherwise pay for. Services have value too.
4. Paying a lead or referral company: buying patient referrals for federally payable care raises the same question as paying a person for them.
5. Marketing agreements with facilities: fees for access to patients or to a facility’s discharge planning team.

None of this means an agency cannot build relationships. Educating referral sources about what your agency does, which areas you serve, which conditions your clinicians are trained for and how fast you can start care is ordinary, useful marketing. The question is whether anything of value changes hands in connection with referrals.

No free Medicare inducements to patients and families

A separate civil law applies to what you offer patients. Under 42 U.S.C. 1320a-7a(a)(5), a person who offers or transfers remuneration to a Medicare or state health care program beneficiary, knowing or having reason to know it is likely to influence the beneficiary to choose a particular provider for covered items or services, can face civil monetary penalties.

The same statute defines remuneration to include waivers of coinsurance and deductibles and transfers of items or services for free or for other than fair market value. It lists exceptions, including waivers that are not advertised, are not routine and follow a good-faith determination of financial need.

OIG’s Policy Statement Regarding Gifts of Nominal Value, dated December 7, 2016, says OIG interprets nominal value as a retail value of no more than 15 dollars per item or 75 dollars in the aggregate per patient on an annual basis, and that the items may not be cash or cash equivalents. OIG’s Fraud and Abuse Laws page also says routinely waiving required copays could implicate the anti-kickback statute and that you may not advertise that you will forgive copayments.

In practice, avoid marketing lines such as free home health care for Medicare patients when the point is to attract the patient to your agency rather than to describe the Medicare benefit, gift cards for choosing your agency, free personal care hours bundled with Medicare-covered visits, or advertised copay forgiveness. Describing accurately what Medicare covers, in Medicare.gov’s own terms, is different from offering a free extra to win the patient.

Patient choice and honest referral lists

Medicare.gov tells patients that if their provider decides they need home health care, the provider should give them a list of agencies that serve their area, and must tell them if the provider’s organization has a financial interest in any agency listed. Your marketing should respect that choice. Do not imply that a hospital, physician or plan requires the patient to use your agency unless that is true and documented.

Hospital at home is a different service. Those patients are hospital inpatients receiving an inpatient level of care at home under a CMS waiver, not home health patients, and they may move to home health after the hospital stay ends. Our guide to hospital at home program marketing covers that model.

Reviews, testimonials and your Google listing

Families read reviews closely when choosing an agency. The FTC rule on consumer reviews and testimonials, 16 CFR Part 465, prohibits fake reviews, and section 465.4 prohibits giving compensation or other incentives in exchange for, or conditioned on, reviews expressing a particular sentiment. Asking every patient or family for honest feedback, with no reward tied to a positive review, is the safe pattern. Keep patient privacy in mind when replying to reviews, and do not confirm in a reply that someone is a patient.

Google’s guidelines for representing your business on Google require the business name, address and categories on a Business Profile to reflect the real business. An agency that serves patients at home rather than at an office is a service-area business and should follow the address and service area rules in those guidelines. We cover listings in more depth in our healthcare SEO work.

What tends to work, inside the rules

1. A plain-language eligibility page: who Medicare home health is for, in Medicare.gov’s terms and linked to it, and what your private-pay services are.
2. Service area and start-of-care clarity: the counties or zip codes you serve, how quickly you can usually start after a referral, and what happens on the first visit.
3. Referral source education: a one-page summary of your services, intake contact, fax and hours, given to referral sources without anything of value attached.
4. Fast, answered intake: referrals are lost when a discharge planner or family cannot reach anyone. Coverage at lunch and after hours, by staff or an AI front desk that hands off to staff, matters as much as any campaign.
5. Recruitment pages: home health agencies also market to clinicians. Job pages with real pay ranges and schedules support growth as much as patient-facing pages. An agency that also places nurses or aides with other providers faces the staffing firm rules in our guide to healthcare staffing agency marketing.
6. Tracking by source: know which referral sources, search, listing and ads bring admissions, as described on our medical lead generation page, so you put effort where families actually come from.

Frequently asked questions

Sources

• 42 U.S.C. 1320a-7b: Criminal penalties for acts involving Federal health care programs (anti-kickback statute, subsection b)
• 42 U.S.C. 1320a-7a: Civil monetary penalties (beneficiary inducement, subsection a(5); remuneration definition, subsection i(6))
• HHS OIG: Fraud and Abuse Laws
• HHS OIG: Policy Statement Regarding Gifts of Nominal Value to Medicare and Medicaid Beneficiaries (December 7, 2016)
• Medicare.gov: Home health services
• 16 CFR Part 465: Use of consumer reviews and testimonials
• Google: Guidelines for representing your business on Google

More in Facilities, care services and pharmacy