Top 10 ways to avoid federal fraud prosecution: the former chief counsel at the office of inspector general offers suggestions for staying out of trouble.(Practice Trends)

BALTIMORE -- There are 10 things doctors can do--or avoid doing--to help prevent themselves from being prosecuted by the federal government for fraud, D. McCarty Thornton said at a forum sponsored by the American Health Lawyers Association.

Mr. Thornton, formerly chief counsel at the Office of Inspector General (OIG) and now an attorney in private practice, offered his "Top 10" in reverse order of importance:

10. Nice personal favors to referral sources are over. That message was reinforced by both the TAP pharmaceutical lawsuit and OIG's recently released guidance to pharmaceutical firms concerning proper marketing techniques. Mr. Thornton said. "This means no [football] tickets, no fancy dinners, nothing for spouses, no free computers, and don't put strings on any kind of 'educational grant.'"

9. Don't be the low-hanging fruit ... Since the number of federal agents investigating fraud is declining, each agent has stacks of potential cases to choose from, he noted. "You don't want to stick out" by being an outlier on claims or engaging in other questionable behavior.

8. ... But also be wary of being in the crowd. Don't go along with any questionable behavior just because large groups of people are doing it. "Common sense is a lot of it." Mr. Thornton said at the meeting.

7. If you are mulling over a particular business transaction, consider whether the deal will pose a problem under the antikickback statute. "The further the deal is away from clinical decision making, the more leeway you have under the kickback statute, because the No. 1 purpose of the statute is to prevent the corruption of medical decision making," he said.

"For example, if the deal concerns office software for billing or practice management, it doesn't really affect where or how clinical decisions are made, and you have a lot more leeway under the kickback statute."