FEDERAL ANTI-KICKBACK STATUTE

42   U.S.C. §1320a-7b(A)-(B)

Mr. Feldman has experience defending and advising individuals with respect to violations of the Federal Anti-Kickback Statute.

The Federal Anti-Kickback Statute is a criminal statute and a violation of the statute may result in incarceration. The chief purpose of the Anti-Kickback Statute was to eliminate the fraud, abuse, and waste in our federal health care system by prohibiting illegal remuneration. Illegal remuneration may take many forms and is often overlooked in the context of business transactions, joint ventures, bonus incentive arrangements, discounts, and other proposed compensation arrangements.Frequently, Anti-Kickback statute prosecutions will be part of an overarching health care fraud prosecution or conspiracy.

Furthermore the Anti-Kickback statute is broad and may apply to “any person”  receiving or soliciting “remuneration,” including but not limited to, healthcare providers, practitioners, and entities. The Anti-Kickback statute also has two provisions — one relates to referrals while the other does not necessarily require a referral. In fact, a plain reading of the Anti Kickback statute and Office of Inspector General advisory opinions make it clear that the Anti Kickback statute also prohibits remuneration in return for inducing someone to purchase, order, or arrange for purchasing or ordering an item, service, or good that is covered by Medicare, Medicaid, or Tricare. Likewise, the Anti Kickback statute also prohibits remuneration in return for recommending purchasing or ordering an item, service, or good that is covered by Medicare, Medicaid, or Tricare. For these reasons, anyone subject to a possible Anti-Kickback statute violation should contact a competent attorney when considering a compensation arrangement which may implicate the Anti-Kickback statute. Some arrangements, for example, which may implicate the Anti-Kickback Statute, include, but are not limited to:

  • Joint ventures
  • Independent contractor agreements
  • Sales and marketing contracts
  • Contracts containing provisions for bonus or incentive payments
  • Lease agreements
  • Management and Service Agreements
  • Contracts containing provisions for discounts or rebates

Exceptions and Safe-Harbors. Numerous statutory exceptions or regulatory safe harbors may apply to the proposed arrangements described above, and therefore, it is critical to contact an attorney to determine if the proposed arrangements is protected by an applicable exception or safe-harbor.

False Claims Act. The Anti-Kickback Statute is also frequently used as a basis for a civil qui tam action alleging a violation of the False Claims Act against health care entities, facilities, and providers. In fact, in recent years, the Anti-Kickback statute has become a powerful weapon for whistle blowers seeking financial rewards based on the reporting of fraudulent conduct. In those cases, instead of proceeding with a criminal action under the Anti-Kickback Statute, the government might allege that a health care provider violated the False Claims Act when the provider presented or caused to be presented a claim for payment to a federal health care program for services rendered in violation of the Anti-Kickback Statute.

Penalties. Violations of the Anti-Kickback Statute may expose providers and entities to additional, severe consequences, including, but not limited to:

  • The imposition of a civil monetary penalty of no more than $50,000.00 for each act pursuant to 42 U.S.C. §1320a-7a(a);
  • An “assessment” of not more than 3 times the amount of remuneration offered, paid, solicited, or received pursuant to 42 U.S.C. §1320a-7a(a);
  • Exclusion from federal healthcare programs; or
  • The filing of a qui tam action alleging a violation of the False Claims Act against the person or corporation.

Contact the Feldman Firm if you are under investigation for a violation of the Anti-Kickback Statute or have been contacted in connection with an investigation of violations of the Anti-Kickback Statute.