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What Is the Difference Between a Physician Self-Referral and a Kickback?

By Spodek Law Group | April 1, 2022
(Last Updated On: July 28, 2023)

Last Updated on: 28th July 2023, 07:21 pm

When dealing with Medicare, Tricare, Medicaid, or any other government benefit program, medical providers must navigate regulatory and statutory billing restrictions. Every healthcare provider must adhere to specific compliance laws, such as the Anti-Kickback Statute and Physician Self-Referral Law. Both of those laws have limitations, requirements, and penalties.
It is vital to know the difference between these laws so that medical providers can avoid federal prosecution and reduce the potential for civil liabilities. If you are the center of a healthcare fraud investigation, make sure to consult with an experienced defense attorney.
Kickbacks and Physician Self-Referrals Differences
When trying to determine the difference between these two situations, there are specific points that you need to consider. Here are the key differences between a kickback and a physician self-referral.
Applicability Scope
Physician self-referral is often known as “Stark Law.” These statutes and laws have different applicability scopes. Stark Law only applies to doctors and their family members. Any healthcare entity that shares a “financial relationship” with the medical provider is covered under the law.
Stark Law applies to services billed to Medicaid and Medicare from a “designated health provider.” On the other hand, the Anti-Kickback Statute concerns all medical providers and their personnel. This statute also applies to all federal programs. The federal government can prosecute providers for soliciting, receiving, or paying improper monetary compensation.
Criminal and Civil Liability
Stark Law is a civil statute. These unlawful self-referrals are punished with financial penalties and exclusion from specific programs. Some penalties under Stark Law include:
Civil monetary penalties
Restitution for the improper amounts billed to Medicaid and Medicare
False Claims Act liabilities
Medicaid and Medicare program exclusions
While Stark Law solely focuses on civil penalties, the Anti-Kickback Statute includes both criminal and civil enforcement provisions. These civil penalties have higher monetary fines. In criminal cases, the medical providers and their personnel often face stricter penalties per violation. These consequences include five years in federal prison and a $25,000 fine.
Stark Law and the Anti-Kickback Statute offer exemptions to protect medical providers from any legal liabilities. There are several exceptions under Stark Law. Many of these exceptions have been expanded under federal regulations, and they include:
Legitimate employment relationships
Personal service arrangements
Certain arrangements with a hospital
Payments by a physician
Charitable donations by a physician
Non-monetary compensation
Compliance training
Referral services
Professional courtesy
Retention payments in underserved areas
Safe harbors and exemption provisions are provided in the Anti-Kickback Statute. Some of the exceptions are similar to Stark Law, and they include:
Specified risk-sharing arrangements
Legitimate payments to W-2 employees
Payments to purchasing agents
Safe harbor transactions
Intent and Strict Liability
Stark Law is known as a “strict liability” statute. With that, the prosecution does not have to prove an intentional action on the provider’s behalf. However, federal prosecutors must show that the provider improperly billed Medicaid or Medicare for unlawful-referred services. In some cases, the provider provided an illegal self-referral as a medical doctor. These two actions are enough for a civil liability violation.
Under the strict liability provision of Stark Law, federal prosecutors can pursue financial fines. However, the prosecutors must establish intent to seek program exclusion of the healthcare provider.
Proof of intent is necessary for criminal or civil offenses under the Anti-Kickback Statute. The violations must be “willfully and knowingly” committed by a healthcare provider or their employees. Constructive knowledge is enough to provide an Anti-Kickback Statute violation.
Different Types of Transactions
In many cases, the Anti-Kickback Statute and Stark Law are discussed together. Remember that kickback and self-referrals are two distinct types of transactions according to federal law.
With a self-referral, the designated health service has referred a patient to an entity that has a financial relationship with the referring physician. An illegal kickback is often paid in exchange for a payment to a healthcare benefit program from the federal government. Only improper claim submissions and referrals can trigger liability. If there is an attempt to solicit a referral fee, that action is enough for criminal prosecution with the Anti-Kickback Statute.
If you have been accused of these civil or criminal crimes, you need to speak to an experienced federal fraud defense lawyer. With the right legal advice, you can find a favorable outcome for your case

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