dispensing TENS with "kick back" (California) (California)

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dispensing TENS with "kick back" (California) (California)

Postby michaelb on Mon Mar 02, 2015 11:23 am

There is a DME company that stocks TENS unit at provider's office. The provider determines if the IW needs a TENS unit, provides a letter of necessity to the DME company. Dispenses the unit and is paid a "fee for fitting and instruction" by the DME company. The fee is $200 so it appears to be an inducement to refer per B&P 650


Any recent case law on this?
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Re: dispensing TENS with "kick back" (California) (California)

Postby suekarp on Fri Mar 06, 2015 7:19 am

Just a TNS? I am surprised that the doc is not handing out H-Waves or other more expensive DME.

Having had TNS units, there is not much fitting or instruction required.
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Re: dispensing TENS with "kick back" (California)

Postby ymcgavin@socal.rr.com on Fri Mar 06, 2015 9:53 am

Hi Michael and Sue,

Michael, first of all, I hope you are doing well --- and that you are still involved in helping maimed critters.

This "pay to play" fitting fee financial inducement has been going on for a long long time, and I'm really surprised that some of my TENS competitors that employ this sales model have yet to have their feet held to the fire.

There are two entities I have competed against nationwide that openly pay physical medicine providers, usually chiropractors, podiatrists, and PTs, for "fitting" a patient with a TENS: Analgesic Healthcare and Panther Medical. (There are also numerous other small scale regional TENS suppliers that pay providers to fit the patient with a TENS, but I have encountered Analgesic and Panther far more often. For example, see: http://mainstreetmoments.com/iowa/jobs- ... 81749.html )

The Oregon State Board of Chiropractic addressed Analgesic Healthcare's "pay to play" sales model in 2008:
http://www.oregon.gov/OBCE/press_releas ... _feb08.pdf

In regards to Panther, their website implicitly offers a teaser, but of course they do not openly admit they engage in the "pay to play" sales model: http://www.panthermedical.com/about-panther-medical/

Please note the following sentences and see if you can read in-between the lines:

"We are located in Florida so we are unable to fit patients with their device. This is a great way to increase revenue for your practice and help your patients with home therapy in between office visits. You will have these items on hand without having to buy, bill or collect on them yourself."

Michael, in addition to implicating B&P 650 et seq., I believe LC 139.3 would also come into play for WC physical medicine providers --- and the entity paying that provider a "fitting fee."

Sue, keep in mind that the physical medicine provider who works with companies such as Analgesic or Panther make zero profit on the device dispensed. Instead, it is the DME provider that bills for the device and ancillary supplies. Although Electronic Waveform's H-Wave has long been a competitor, I have never seen or heard of one instance where they pay the physical medicine provider a "fitting fee" as an inducement to dispense one of their units for use in the patient's home.

Some physical medicine providers are quite naive, legally speaking, in respect to being paid a "fitting fee" by those entities. I have been very successful in educating some physical medicine providers that by accepting payment from the entity for "fitting" a patient with a TENS, they are involved in a "pay to play" scheme.

Once the physical medicine provider learns that "fitting" the patient with a TENS is reimbursable by using CPT Code 97535, and that accepting a $200.00 payment from the entity, that bills for the TENS and supplies, for referring their patients to that entity is nothing more than a thinly disguised unlawful kick back, the physical medicine provider will generally cease working with the "pay to play" provider.

Also, Sue, although fitting a patient with a TENS is so simple, even a caveman could do it, proper pad placement, setting the proper pulse width, and proper pulse rate for each individual patient is so much more an art than a science. Remember, each patient is an individual, and there is really no "one size fits all" fitting that will be efficacious for each individual's injury/illness and body part.

I have also personally had conversations with two distinct patients that wanted to use their TENS for a use other than that for which the TENS was prescribed. Both conversations were humorous, but one could have resulted in serious harm to the patient had I not instructed the patient to contact their prescribing physician:

1. Patient with a TENS prescribed for LBP called and informed me her girlfriend was dispensed a TENS for headaches. She tells me she has a headache, and she has placed electrodes on her left and right temple, and wanted me to instruct her on the proper pulse width and pulse rate.

I strongly urged that patient to take the electrodes off, and to seek advice from her prescribing physician. I told her that the TENS might relieve her of her headache, but that there was the possibility that she might become a vegetable.

2. Patient calls and informs me her husband is having problems in the bedroom, and she is wondering if a TENS would be of assistance if she placed one electrode on her husband, and one on her, when having intercourse. Again (although this situation gave me a chuckle that I suppressed), I strongly urged her to go talk with her prescribing physician.

As a postscript, having nothing to do with the question(s) posed by Michael, those OTC ICY/HOT TENS advertised on TV should never be billed to an insurer, or paid for by an insurer, for the treatment of any medical condition. An OTC TENS has a product classification code of NUH per the FDA. On the other hand, a prescription required TENS to treat a medical condition has a product classification code of GZJ

The FDA has expressly declared these governed low powered TENS are not intended to treat any medical injuries or illnesses, but instead the OTC TENS is for "sore or aching muscles of the lower back, arms, or legs due to strain from exercise or normal household and work activities."
http://www.fda.gov/RegulatoryInformatio ... 198645.htm

Happy Friday,

York McGavin
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Re: dispensing TENS with "kick back" (California) (California)

Postby suekarp on Mon Mar 09, 2015 7:12 am

York,
Thank you for the great information! Can I use you as a "subject matter expert" the next time that I have a question or need more information pertaining to TNS uinits?
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Re: dispensing TENS with "kick back" (California) (California)

Postby bakodoc on Sun Mar 15, 2015 12:12 am

Do H-wave people do this fee splitting scheme also or is it just TENS unit?
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Re: dispensing TENS with "kick back" (California) (California)

Postby vampireinthenight on Tue Mar 17, 2015 8:17 am

There's usually some kind of incentive in these situations, if you look hard enough. Some vendors use cash, but others are more subtle. Of course, the liens are never big enough to justify looking very hard.

York, good points. I never even thought about alternative uses for TENS. Funny stories.
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Re: dispensing TENS with "kick back" (California) (California)

Postby bakodoc on Mon Mar 23, 2015 4:46 pm

ymcgavin@socal.rr.com wrote: Although Electronic Waveform's H-Wave has long been a competitor, I have never seen or heard of one instance where they pay the physical medicine provider a "fitting fee" as an inducement to dispense one of their units for use in the patient's home.


Could they be using another method of incentive for the providers? I can't imagine PTP's willing to spend time generating RFA (where H-wave is generally going to be denied), and spend time teleconferencing or appealing for the device without any financial gain. As these are pretty expensive devices, I don't see anyone stocking it with their own resource while the device has very high denial rate. This device is considered investigational by any of the insurance companies I am aware of. Why would WC providers in particular support this device so rigorously?
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Re: dispensing TENS with "kick back" (California) (California)

Postby vampireinthenight on Tue Mar 24, 2015 7:20 am

Well, the vendors would say because their product works so well, it speaks for itself! :lol:

As I said, generally speaking there are lots of creative ways to get people to use one's services. Cash is the most valuable, but of course is heavily scrutinized. What would you say is the next most valuable thing to you? Time is a big one. Everyone needs more time and "time is money", right? Additional personnel saves time. Software, preprinted forms, etc, etc.
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Re: dispensing TENS with "kick back" (California) (California)

Postby michaelb on Sun Sep 04, 2016 8:05 am

York, Thank you for your usual thorough reply. I am late in my response as I inadvertently did not have my notification button in play.
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