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What to Do if Charged With Violating the Anti-Kickback Statute?

November 2, 2021

Physicians and other medical providers are prime objects of kickback schemes. They make important decisions, and their patients approach them with authority. Other businesses, such as pharmaceutical companies, other service providers, medical equipment suppliers and facility owners could benefit from getting more patient business. They may reward doctors for referring Medicaid and Medicare clients to them and vice versa. However, this practice is a felony.

What Is the Anti-Kickback Law?

The Anti-Kickback Law, which falls under 42 U.S. Code § 1320a–7b, is officially known as the Anti-Kickback Statute. It serves to bar healthcare providers from offering any type of compensation in return for patient referrals that are covered by any federal healthcare programs.

This prevents treatment options and recommendations from being influenced by financial profit. Patients’ medical decisions must be made based on their health needs. The physicians’ monetary interests should play no part in their recommendations for treatment, diagnoses or referrals.

This legislation helps limit the over-utilization of medical services. It also helps to regulate Medicare and Medicaid program costs and promote equitable competition. Finally, it helps all patients have access to high-quality, impartial medical care.

What Activities Violate the Anti-Kickback Statute?

The anti-kickback statute is broad and covers activities that involve referring someone to a practitioner or recommending treatments and medications that are covered by government healthcare programs. Anyone who offers or receives a reward for these activities is in violation of the law.

The compensation doesn’t have to be monetary. It can be anything of value.

Some examples of how the anti-kickback law could be violated include:
• Pharmaceutical companies providing consulting services to providers who prescribe their medications
• Offering to fund research in exchange for referrals
• Routinely forgiving or waiving Medicare and Medicaid copays
• Offering real estate, partnership or investment opportunities in exchange for referrals
• Hospitals and facilities discounting rent for providers who will refer business to them
• Pharmacies paying patient recruiters
• Providing restaurant meals, entertainment tickets and travel vouchers in exchange for referrals
• Providing compensation that’s higher than market value to doctors who send patients your way
• Giving out discounts that don’t meet safe harbor requirements

This statute doesn’t prevent doctors from making referrals altogether. In fact, legal referrals are made every day. Our healthcare system depends on it. However, if the referrals are made for reasons other than an interest in patient wellness, they may be a violation of the anti-kickback law. Referrals that violate the law must also be made or received intentionally and willingly.

An individual could violate this law even if the referral service or treatment was medically necessary. The plaintiff does not need to demonstrate that the patient endured any harm.

Consequences and Penalties for Violating the Anti-Kickback Statute

Violating the Anti-Kickback Statute is a felony. The federal code sets forth a penalty of up to 10 years of imprisonment and a fine of up to $100,000. If the Department of Justice discovers that one party has been offering kickbacks, they will conduct an investigation to take legal action against the recipients.

Other charges may also be combined along with a charge of violating the anti-kickback law. These include violation of the False Claims Act and Physician Self-Referral Law, known as the Stark Law.

Moreover, the Civil Monetary Penalties Law sanctions the imposition of monetary and other penalties for fraud. Fines range from $2,000 to $100,000. They are typically much greater than those imposed by the federal government. Intention does not have to be proved in a case that involves a violation of the Civil Monetary Penalties Law. Violators of this law could lose their qualification to participate in federal healthcare programs.

Safe harbor provisions allow for some allowances. For example, discounts, regular employee pay, payments to purchasing agents and infrequent copay waivers for income reasons might not count as violations. However, there is a lot of gray area involved in the safe harbor provisions.

It’s crucial to work with an attorney who is experienced with these matters to navigate charges of violating the Anti-Kickback Statute. If the judge opposes your claim of coverage by safe harbor provisions, you could be penalized. You should work with a legal team that has substantial familiarity with statutes and regulations.

There are cases in which a practitioner wants to set up a legal referral program. If that’s the case, work with a lawyer to ensure that you comply with the Anti-Kickback Statute and all other applicable laws.

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