A seventh circuit decision this february and a settlement announced by the u. Aca expands fraud liability under the anitkickback statute. The criminal statute is drafted broadly so that any arrangement the ties payment to patient referrals is potentially troublesome. Blair introduction the purpose of this article is to analyze the caselaw that has emerged in recent years regarding the correct interpretation and application of the antikickback statutes scienter require. Antikickback law definition of antikickback law by. An act to effectuate the purpose of certain statutes concerning rates of pay for labor, by making it unlawful to prevent anyone from receiving the compensation contracted for thereunder, and for other purposes. A bill must be passed by both the house and senate in identical form and then be signed by the president to become law. Department of justice doj in march call attention to some of the less common ways to violate the federal anti kickback statute. Mintz member and chair of the health law practice karen s. The federal physician selfreferral law, normally known as the stark act, generally prohibits physicians and other healthcare professionals from referring their medicare and medicaid patients to facilities in which they or their immediate family members have an ownership or other. And sometimes they are meant to garner political support for a law by giving it a catchy name as with the usa patriot act or the take pride in america act or by invoking public outrage or sympathy as with any number of laws named for victims of crimes. The federal antikickback statute aks is one of the bestknown federal fraud and abuse statutes, due largely to its wideranging effects on business. Federal pursuit of anti kickback statute takes millions from local ems. For more information regarding penalties for anti kickback violations, see chapter 210, penalties.
The past, present and future of the antikickback statute. While designed to promote fair marketing, it also gives protection to medicaremedicaid patients, who are typically elderly or disabled. Authorized by the anti kickback provisions of the medicare and medicaid anti fraud and abuse amendments of 1977 and the medicare and medicaid patient and program protection act of 1987. Texas authorities have never enforced the states version of the federal anti kickback law, according to testimony in the trial. New local transportation safe harbor to the antikickback. The challenges of the practitionerlaboratory relationship. Aspinwall introduction the antikickback statute is one of the laws the federal government utilizes in its effort to prevent fraud and abuse against publicly funded health care programs. Parkers kickback its great to see spenser tackle a social evil with its roots in real life. Aug 17, 2000 this memorandum provides a brief overview of the legislative and regulatory history of the safe harbors to the anti kickback statute. The justice department is investigating whether several medical labs violated the federal anti kickback statute. The federal antikickback statute aks is one of the bestknown federal fraud and abuse statutes, due largely to its wideranging effects on business relationships in the health care, pharmaceutical, and medical device sectors.
There is no federal preemption provision under the statute. Sep 07, 2014 the justice department is investigating whether several medical labs violated the federal anti kickback statute. Kingsbury coauthored a book published by the american bar association examining the federal antikickback statute, one of the bestknown federal fraud and abuse statutes, which prohibits transactions intended to induce or reward referrals for items or services. Examine the requirements of the medicare antikickback.
The medicare antikickback provision of the social security act afi. And when faced with a key opportunity to do so against those. Its a felony under the antikickback statute to knowingly and willfully offer, pay, solicit, or receive anything of value remuneration in return for a referral, or to generate reimbursable business under a federal healthcare program. Kristen also advises clients on daytoday operational and compliance matters, including fraud and abuse laws, such as the federal stark law and antikickback statute, and the hipaa. Anti kickback and client bill laws vary from state to state but practitioners that have any involvement with medicare have to deal with both federal laws and federal investigators. Antikickback statute definition of antikickback statute. Summary of selfreferral and antikickback regulations. Affordable care act, antikickback statute jd supra. Before sharing sensitive information, make sure youre on a federal government site. This bill was introduced in the 99 th congress, which met from jan 3, 1985 to oct 18, 1986. The medicare anti kickback statute states that it is a felony for an individual or entity to knowingly or willfully offer or pay any remuneration to induce a person to refer an individual for the furnishing or arranging for the furnishing of any item for which payment may be made under a federal health care program e. What to know about the antikickback law the short answer. Hhs proposes stark law and antikickback statute reforms. The oig acknowledges that the anti kickback statute s safe harbor standards are not necessarily the same as the requirements of the stark statute prohibiting physician selfreferrals, 42 u.
The department of health and human services office of inspector general oig recently implemented a new safe harbor to the federal anti kickback statute and beneficiary inducement statute, which went into effect on january 6, 2017. Its origins, complexities, and most recent judicial developmentst douglas a. Any violations of the antikickback statute aks can result in civil fines. Below are 20 things to know about the antikickback statute. Here are ten big anti kickback statute and stark law cases involving hospitals that made headlines in 2010. On the books since 1972, the federal antikickback laws main purpose is to protect patients and the federal health care programs from fraud and abuse by curtailing the corrupting influence of money on health care decisions. Kingsbury coauthored a book published by the american bar association examining the federal anti kickback statute, one of the bestknown federal fraud and abuse statutes, which prohibits transactions intended to induce or reward referrals for items or services reimbursed by. Despite these ongoing activities directed toward healthcare reform, attention should not be distracted from ensuring compliance with the federal anti kickback statute aks. The statute provides criminal penalties for certain acts impacting medicare and medicaid reimbursable services. A practitioners primer on history and use of the federal. Federal antikickback law and regulatory safe harbors overview. It then discusses key aspects of the new safe harbors and clarifications to the existing safe harbors, as set forth in the final rule and accompanying preamble.
A practitioners primer on history and use of the federal anti. Mar 28, 2017 a practitioners primer on history and use of the federal antikickback statute. Nov, 20 the broad scope of the anti kickback statute has been limited only by its required nexus to federal health care programs such as medicare and medicaid, and the power of the anti kickback statute. New safe harbor regulations under the antikickback. This article traces the development of the federal antikickback statute aks, one of the governments most.
Hhs proposes stark law and anti kickback statute reforms to support valuebased and coordinated care today, the department of health and human services hhs announced proposed changes to modernize and clarify the regulations that interpret the physician selfreferral law the stark law and the federal anti kickback statute. Most courts interpreted the false claims act to mean that claims submitted as a result of anti kickback statute violations were false claims and therefore gave rise to false claims act liability. The five most important federal fraud and abuse laws that apply to physicians are the false claims act fca, the anti kickback statute aks, the physician selfreferral law stark law, the exclusion authorities, and the civil monetary penalties law cmpl. For legislative history regarding the development of the medicare program, see s. Essentially, when a contract management company is paid a percentage of the physician fees, the oig has determined that such an arrangement may be in violation of the antikickback statute contained in the social security act. The federal anti kickback statute aks is one of the bestknown federal fraud and abuse statutes, due largely to its wideranging effects on business relationships in the health care, pharmaceutical, and medical device sectors. Federal pursuit of antikickback statute takes millions. Thus, conduct that is lawful under the federal anti kickback statute or this regulation may still be illegal under state law. Inspector general announces eight new antikickback statute safe. And, unlike stark, this even includes the provision of christmas gifts to nonphysicians, such as physician office staff. History of the anti kickback statute the anti kickback statute was originally enacted as part of the social security amendments act and made it a misdemeanor to solicit, offer or receive any kickback or bribe in connection with furnishing medicare or medicaid services or.
The anti kickback statute prohibits arrangements that might be common in other industries. The aks is a criminal statute that prohibits transactions intended to induce or reward referrals for items or. The federal antikickback statute was intended to prohibit the practice of paying medical professionals solely to endorse and promote the use of medical devices and products. The federal antikickback statute prohibits the knowing and willful solicitation, offer, payment or acceptance of any remuneration, directly or indirectly, overtly or covertly, in cash or in kind in return for. Iklnowingly and willfully offers or pays any remuneration including any kickback, bribe, or rebate directly or indirectly, overtly or covertly, in cash or in kind to any person to induce such person. Legislative history of the antikickback statute 227. Despite the addition of the antikickback statute, medicare and medicaid fraud and abuse continued to rise, according to the journal of law and health. It prohibits a federal building contractor or subcontractor from inducing an employee into giving up any part of the compensation that he or she is entitled to under the terms of his or her.
Chapter 1815 hospice and nursing home relationships. Legislation enacted to prevent industries from having an unfair advantage in obtaining government contracts, in which a company x would offer an illegal kickback fee to a person instrumental in ensuring that x would get a lucrative contract for a service performed or product sold. Court of appeals for the third circuit has cleared medco health solutions of violating the anti. The antikickback statute is a healthcare fraud and abuse statute that makes it illegal to exchange remuneration for referrals of services that are payable by medicare and other federal program. The medicare anti kickback statute states that a health care provider such as a dme supplier cannot provide anything of value to a person or entity in exchange for referring, or arranging for the referral of, patients covered by a government health care program medicare, tricare, medicare advantage, medicaid.
Department of justice doj in march call attention to some of the less common ways to violate the federal anti kickback statute aks. Background of the anti kickback statute the social security amendments of 1972 established specific. Department of health and human services electronic health record incentive program and practice fusions compliance with the anti kickback statute and hipaa as it relates to certain business practices engaged in by practice fusion. May 01, 2012 claims under the anti kickback statute false claims act before the ppaca. The importance of this opinion for emergency medicine cannot be understated. It does, however, use the phrase safe harbor to cover many types of referral actions that are protected. Practical perspectives american bar association section of health law bna books, 3rd ed. New safe harbor regulations under the antikickback statute. What is antikickback act 1986 federal kickback statute.
The antikickback statute is a criminal statute, but it provides both civil and criminal penalties for violations that do not fall within one of its safe harbors. What the anti kickback statute says about nonmonetary gifts as mentioned above, providing gifts to referral sources implicates the federal anti kickback statute in addition to stark. The aks, enacted in 1972 and amended on several subsequent occasions, is a not a new development. Before a dme supplier pays money to a physician for services, or provides gifts and meals to a physician, the supplier needs to i examine the requirements of the medicare antikickback statute, stark, and applicable state statutes and ii consult with a health care attorney. Oig antikickback provisions office of inspector general. Kickbacks may also compromise the medical decisionmaking processes of physicians and hospitals in the form of patient steering. The anti kickback statute is a us law prohibiting a business or person from offering money to medical personnel in return for the recommendation of products or services to patients on certain federally covered medical programs, including medicaremedicaid. Particularly, the statute prohibits the offer or receipt of certain remuneration in return for referrals for or recommending. The aks is a criminal statute that prohibits transactions intended to induce. Find all the books, read about the author, and more. Thus, conduct that is lawful under the federal antikickback statute or this. Violation of the anti kickback statute is a criminal offense. The government contends that violating the antikickback statute exploits the healthcare system, drives up program costs and hinders fair competition in the industry.
Whistleblowers play an instrumental role in enforcing the anti kickback statute. Thomas s crane, samantha kingsbury, karen lovitch, carrie roll. Expert witness commentary on the recent paramedics plus litigation, in which the government alleged violations of the. Antikickback statute legal and regulatory information. Examine the requirements of the medicare antikickback, stark. The anti kickback statute doesnt have specific exceptions the way stark law does. The anti kickback statute for whistleblowers the anti kickback statute is a federal law that prohibits payments to induce referrals for items or services that are covered by a federal healthcare program, such as medicare and medicaid. Hhs released a report that provides observations on the effects of stark law and the anti kickback statute on the industry. Employees of physicians, as in the selfreferral law, are exempt from anti kickback laws see regulation section 1001. History books, newspapers, and other sources use the popular name to refer to these laws. The medicare and medicaid patient protection act of 1987 is referred to as the anti kickback statute i. The law attempts to make the anti kickback statute a more useful prosecutorial tool by expanding the definition of prohibited conduct and by making the statute applicable to a broader range of persons involved in government subcontracting. Once again, atkins has done a splendid job of capturing the voice of the late robert b.
Comparison of the antikickback statute and stark law the antikickback statute 42 usc 20a7bb the stark law 42 usc 95nn prohibition prohibits offering, paying, soliciting or receiving anything of value to induce or reward referrals or generate financial relationship, unless an exception appliesfederal health care. Background of the antikickback statute the social security amendments of 1972 established specific. The federal antikickback statute and the stark law are often confused because both laws deal with remuneration related to improper. The antikickback statute makes it a criminal offense for a provider to give remuneration to a physician in order to compensate the physician for past referrals or to induce future referrals of patients to the provider for items or services that are reimbursed, in whole or in part, by medicare or medicaid. On the books since 1972, the federal antikickback law prohibits anyone from knowingly and willfully receiving or paying anything of value to. How forest park medical center players got away with. On the books since 1972, the federal antikickback laws main purpose is to protect patients and the federal health care programs from. Even private practitioners have to be mindful of their states rebilling laws which vary in whether or not they can rebill, markup, or be forcred to disclose markups. The law is named after united states congressman pete stark, who sponsored the initial bill in 1989. Aug 12, 2015 the federal antikickback statute does not specifically target physicians. The knowingly and willfully continuum of the antikickback. Medicaremedicaid billing and reimbursement, licensure and accreditation. It prohibits the exchange or offer of anything of value in an effort to influence or reward the referral of federal health care program business. The antikickback provision prohibits referrals to facilities not owned by the referring.
Third circuit says health care companys donations didnt. Stark law is a set of united states federal laws that prohibit physician selfreferral, specifically a referral by a physician of a medicare or medicaid patient to an entity for the provision of designated health services dhs if the physician or an immediate family member has a financial relationship with that entity the term referral means the request by a physician for the item or. Issues of state law are completely independent of the federal anti kickback statute and these regulations. The legislative history of section 14 of public law 10093 indicates that congress. A bill to strengthen the prohibition of kickbacks relating to subcontracts under federal government contracts. In addition, if a person is convicted of violating the law, the person is subject to exclu sion from federal healthcare programs. The anti kickback statute makes it a criminal offense to knowingly and willfully offer, pay for, solicit, or receive any remuneration to induce or reward referrals of items or services reimbursable by a federal healthcare program. The past, present and future of the anti kickback statute.
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