Can You Pay a Marketer for Home Health Referrals?

Sooner or later every agency owner gets the pitch: "We only get paid when you get a patient." It sounds like the safest deal in the world. For a Medicare or Medicaid agency, it's one of the riskiest.

This isn't legal advice. It's what the rules say, with links, so you can have a better conversation with your own healthcare lawyer.

What the federal law says

The Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b), makes it a felony to knowingly and willfully offer, pay, solicit, or receive anything of value to induce or reward referrals of items or services paid for by a federal health care program. Medicare and Medicaid both count.

Notice what's covered: the payment to anyone who arranges or recommends the referral, not only the doctor or planner. A marketer paid per admission is being paid based on referrals.

The flat fee structure

There's a safe harbor for personal services and management contracts at 42 C.F.R. § 1001.952(d). Among its conditions: a written agreement, a term of at least a year, and compensation whose methodology is set in advance and doesn't take into account the volume or value of referrals.

In plain terms: a fixed monthly fee for defined marketing work is the shape a lawyer can work with. A fee that goes up when your census goes up is the shape regulators worry about. OIG has described percentage-based marketing compensation as problematic for exactly that reason.

Paying the referral source is a separate problem

Even with a clean marketing contract, anything of value that reaches the person who refers is its own risk. Gift cards, lunches tied to referrals, free staff for a facility.

Some states say it outright. Florida's § 400.474 lets regulators discipline, and fine, a home health agency that gives remuneration to a hospital or facility discharge planner or case manager it gets referrals from. Florida's patient brokering law, § 817.505, goes further. Other states have their own versions.

Two recent warnings

The HHS Office of Inspector General has been specific about home care lately. In Advisory Opinion 25-12, OIG declined to protect a home care agency's plan to pay sign-on bonuses to caregivers who were usually family members choosing the agency for a Medicaid relative.

And in June 2026, OIG issued an unfavorable opinion on a home health operator paying a subscription to receive hospital referral requests electronically, as LeadingAge summarized. Buying access to referrals, even through software, carries risk.

What to look for in any marketing deal

• A flat, written fee that doesn't change with referrals, admissions, or revenue.
• A defined scope: who is contacted, where, and what is never said.
• Nothing of value going to referral sources.
• No patient information in any outreach.
• A vendor who's comfortable having your lawyer read the contract.

Our own fee is flat and written down before we start. Whoever you hire, show the agreement to your lawyer before you sign.