Anti-Kickback Statute

U.S. law prohibits the offer or payment of kickbacks for referrals in the government healthcare programs.  Whistleblowers with evidence of violations of the Anti-Kickback Statute can report it to the Justice Department through the False Claims Act.  In order to incentivize reporting of Medicare and Medicaid fraud, the False Claims Act pays a reward of between 15 and 30 percent of the recovery to eligible individuals according to the law’s terms and conditions.  For a free, confidential initial legal consultation concerning reporting under the False Claims Act, call our whistleblower attorneys at 1-800-590-4116.

In 1972, Congress passed the Anti-Kickback Statute to ensure Medicare and Medicaid patients received sound medical advice and that referrals of patients to other health care providers were based on the best interests of the patients and not the potential benefit to the referrer. It is a criminal statute prohibiting kickbacks, requiring the conduct to be done intentionally.

The law is very broad. It is not restricted to physicians like the Stark Law’s prohibition on self-referrals. It applies broadly and is limited by the fact that the referral has be an item or service reimbursed by a Federal Health Care Program.

The prohibited remuneration is also broad. It covers any kickbacks, bribes and rebates made in cash or in kind, directly or indirectly, overtly or covertly. It also covers not only efforts to induce patient referrals but also the purchasing, leasing, ordering or arranging for any good, facility service or item paid for by a federal health care program.

History

The Anti-Kickback Statute started as part of the Social Security Amendments of 1972.  In 1977, Congress broadened the law to prohibit any remuneration as well as made it a felony with punishment of five years in prison and/or a $25,000 fine.  Ten years later, Congress enacted the Medicare and Medicaid Patient and Program Protection Act of 1987, which codified the Federal Anti-Kickback Statute at 43 U.S.C. § 1320a-7b.

Safe Harbors

In order to mitigate the impact on legitimate business activities, the Department of Health and Human Services has promulgated a number of safe harbors. If the conduct falls within one of the safe harbors, the U.S. Government will not prosecute the individual under the Anti-Kickback Statute.  There are more than 20 safe harbors codified in 42 C.F.R. 1001.952 et seq.

False Claims Act

A violation of the Anti-Kickback Statute is also a violation of the False Claims Act as compliance with the law is a condition of payment under Medicare and Medicaid. If a health care provider violates the kickback law, they are subject to monetary penalties and treble damages under the False Claims Act.

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