Anti-Kickback Law: Beyond Medicare, What You Need Know

The Anti-Kickback Statute (AKS) is a federal criminal law that prohibits the offering, paying, soliciting, or receiving of kickbacks in exchange for referrals for federal health care program business. The AKS was first enacted in 1972 and has since undergone multiple amendments. The AKS applies to Medicare, Medicaid, and other federal health care programs. Violation of the AKS is a felony, punishable by up to ten years in jail and fines of up to $100,000 per violation. The AKS also triggers liability under the Civil Monetary Penalties Law (CMPL), which can result in additional fines of up to $50,000 per kickback, as well as treble damages.

The AKS covers a broad range of activities and extends to all medical providers who are in a position to arrange or recommend medical services. Referrals under the AKS include any item or service for which payment may be made in whole or in part under a federal health care program.

While the AKS covers a wide range of activities, it requires a showing of an intent to induce referrals. Criminal provisions of the AKS are violated when something of value is knowingly and willfully provided with the purpose of inducing referrals.

Claims for payment submitted to Medicare or Medicaid that include items or services resulting from a violation of the AKS are deemed false claims under the False Claims Act, even if the defendant was unaware of the existence of the AKS.

The AKS has some exceptions, referred to as safe harbors. These safe harbors protect certain payment and business practices that could otherwise implicate the AKS from criminal and civil prosecution. Examples of safe harbors include bona fide employment, personal services and management contracts, discounts, and group purchasing organizations.

The Anti-Kickback Statute prohibits offering or accepting kickbacks intended to generate healthcare business

The Anti-Kickback Statute (AKS) is a federal criminal law that prohibits offering or accepting kickbacks intended to generate healthcare business. Violating the AKS is a felony, with serious penalties, including jail time and substantial fines. The AKS is designed to protect the integrity of government healthcare programs, such as Medicare and Medicaid, by ensuring that medical treatment decisions are made independently and in the best interests of patients.

The AKS defines "remuneration" broadly to include anything of value, such as cash, gifts, free or discounted supplies or services, travel, and inflated payments. It prohibits kickbacks to doctors and other healthcare providers who refer patients to specific drugs, tests, equipment, specialists, or hospital services that are paid for by health insurance. It also prohibits kickbacks to patients, procurement staff, and marketing or sales personnel who influence the purchasing or leasing of healthcare goods or services.

Violations of the AKS can result in criminal penalties, including fines of up to $100,000 and up to 10 years in prison. They can also lead to civil penalties under the Civil Monetary Penalties Law (CMPL), with additional fines of up to $50,000 per violation and treble damages. Violators may be excluded from participating in federal healthcare programs and may face liability under the False Claims Act, resulting in further financial penalties.

The AKS has been amended multiple times since its enactment in 1972, reflecting the evolving nature of healthcare fraud. Whistleblowers play a crucial role in exposing violations of the AKS, and they are protected by the False Claims Act, which allows them to file "qui tam" lawsuits and receive rewards for their efforts.

The AKS is an essential tool in combating healthcare fraud and protecting patients from unnecessary or inappropriate treatment. By prohibiting kickbacks and other unlawful financial arrangements, the AKS helps ensure that medical decisions are based on the best interests of patients rather than the financial interests of healthcare providers.

The Anti-Kickback Statute is a federal criminal law

The AKS makes it illegal to willfully and knowingly exchange payment or anything of value in order to influence referrals of federal health care program business, such as:

• Health care services for patients covered by Medicare or Medicaid
• Health care services for military members or families (i.e. TRICARE)
• Drugs, including compounded drugs and specialty creams
• Medical supplies or equipment covered by federal payors

Under the AKS, both payors of kickbacks (those who pay or offer payment) and recipients of kickbacks (those who receive or solicit payment) can be prosecuted and subject to punishment.

The AKS is an intent-based law, meaning individuals must have acted knowingly and willfully in order to be convicted. Even if a physician provided services that were medically necessary, they can still be guilty of violating the AKS. There is no requirement for the government to prove patients suffered harm as a result of a defendant’s conduct or that a federal health care program suffered losses to prove a violation.

Penalties for violating the Anti-Kickback Statute are steep. Although it is a criminal statute, it imposes both criminal and civil penalties for violations, and can have a profound impact on one’s personal and professional life. While penalties vary on a case-by-case basis, violations may result in criminal fines, up to five years in federal prison, civil fines, exclusion from federal health care programs, loss of medical license, and more.

Violation of the Anti-Kickback Statute is a felony, with serious penalties

Criminal Penalties:

Those convicted of violating the Anti-Kickback Statute face criminal penalties, including fines of up to $100,000 per violation and imprisonment of up to ten years. The statute explicitly states that violators "shall be guilty of a felony" and may be subject to both fines and imprisonment.

Civil Penalties:

In addition to criminal penalties, those who violate the Anti-Kickback Statute may also face civil penalties, including:

• False Claims Act Liability: Violators may be liable under the False Claims Act, which allows the government to recover damages through a lawsuit in federal court. Damages can include treble damages (up to three times the government's loss) and substantial penalties per claim.
• Civil Monetary Penalties Law: The Civil Monetary Penalties Law (CMPL) imposes additional fines of up to $50,000 per kickback, plus treble the amount of the remuneration.
• Exclusion from Federal Health Care Programs: Violators may be excluded from participating in federal healthcare programs, such as Medicare and Medicaid.
• Qui Tam Lawsuits: Whistleblowers can file "qui tam" (whistleblower) lawsuits under the False Claims Act and may receive a portion of the government's recovery.

The Anti-Kickback Statute is designed to protect the integrity of government healthcare programs and ensure that medical decisions are made independently, without the influence of kickbacks or bribes. It is important for healthcare providers and potential whistleblowers to understand the scope and safe harbors of the Anti-Kickback Statute to ensure compliance and prevent violations.

The Anti-Kickback Statute covers a broader range of activity than the Stark Law

The Anti-Kickback Statute (AKS) and the Stark Law are both US federal laws that aim to prevent corruption and limit the cost of medical decision-making. They prohibit kickbacks and other financial arrangements that could influence medical treatment decisions.

The AKS requires proof of improper intent, while the Stark Law is a strict liability statute with no proof of intent required. The AKS prohibits the exchange or offer to exchange anything of value to induce or reward the referral of business reimbursable by federal healthcare programs. On the other hand, the Stark Law prohibits physicians from referring patients to receive designated health services payable by Medicare or Medicaid from entities with which the physician or their immediate family member has a financial relationship.

Violating the AKS can result in criminal and civil penalties, including fines of up to $100,000, up to ten years in jail, and exclusion from federal healthcare programs. Violating the Stark Law can result in civil penalties, including fines, exclusion from federal healthcare programs, and denial of payment for designated health services provided.

The Anti-Kickback Statute requires a showing of an intent to induce referrals

The Anti-Kickback Statute, also known as the Medicare and Medicaid Fraud and Abuse Statute, is a federal criminal law that prohibits offering or accepting kickbacks intended to generate healthcare business. The law covers a broad range of activities and applies to all medical providers who are in a position to arrange or recommend medical services.

The Anti-Kickback Statute requires a showing of an "intent to induce referrals". This means that the statute only applies when the purpose of the kickback is to reward or induce the referring, buying, etc. In other words, the statute is violated when something of value is "knowingly and willfully" provided with the purpose of inducing referrals.

For example, in the case of United States vs. Kamal Patel, a Chicago-based doctor was found to be in violation of the Anti-Kickback Statute because he referred one of his patients to a home healthcare provider in exchange for monetary payment. The court ruled that the term "referring" under the statute includes not only the act of recommending a service but also authorising such services.

Violating the Anti-Kickback Statute is a felony and can result in serious penalties, including fines of up to $100,000 per violation and up to ten years in jail.

Frequently asked questions