Until then, only one provision sanctioned false claims and misrepresenting facts to the. In order to avoid liability under the practitioner recruitment safe harbor, all of. Recent stark law and antikickback statute cases cohen. It is not uncommon to see major cases involving the antikickback statute.
The secretary of health and human services in this subsection referred to as the secretary shall establish, on an expedited basis and using a negotiated rulemaking process under subchapter 3 iii of chapter 5 of title 5, united states code, standards relating to the exception for risksharing arrangements to the antikickback penalties. 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. This is a strict liability statute, so proof of specific intent to violate the law is not. 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. Under recent amendments passed as part of the patient protection and affordable care act, a person need not have actual knowledge that the alleged activity violates the antikickback statute or that there be a specific intent to commit a violation of the antikickback statute. In order for an accused to be held accountable, the government must prove intent, but since the enactment of the patient protection and affordable care act, criminal. The foreign corrupt practices act, the antikickback. Congress originally enacted the anti kickback statute as part of the social security amendments of 1972.
Federal antikickback law and regulatory safe harbors overview. The aks is a criminal statute that prohibits transactions intended to induce or reward referrals for items or. Surviving fair market value and commercial reasonableness. Antikickback statute, section 1128bb of ss act, 42 usc 20a7bb criminal statute requires intent of an illegal inducement doj, not oig, is responsible for prosecutions government must prove guilt beyond a reasonable doubt specific intent intent to violate the aks is not required prohibits the knowing and willful offer, solicitation, payment or receipt of. The federal antikickback statute makes it a felony to knowingly and willfully offer, pay, solicit, or receive any remuneration to induce or reward referrals or items or services reimbursable by a federal health care program. The medicare antikickback 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.
What does it mean to remove the intent requirement in anti. Congress originally enacted the antikickback statute as part of the social security amendments of 1972. Anti kickback statute, section 1128bb of ss act, 42 usc 20a7bb criminal statute requires intent of an illegal inducement doj, not oig, is responsible for prosecutions government must prove guilt beyond a reasonable doubt specific intent intent to violate the aks is not required prohibits the knowing and willful offer, solicitation, payment or receipt of. Multimedia featured content ebooks ebook archives videos polls living. This amendment may make it easier for the government to prove its case. New safe harbor regulations under the antikickback. Antikickback statute legal and regulatory information. The stark law is a civil statute, and a transaction must fall entirely within an exception to be lawful, regardless of the parties intent.
While there are certain safe harbor provisions for remunerative arrangements, set forth in the antikickback statute 42 u. Aca revises the evidentiary standard under the antikickback statute and eliminates the requirement of actual knowledge of, or specific intent to commit a violation of the statute. Antikickback statute possible safe harbors for antikickback statute. R part 1001, that offer protection for certain types of financial arrangements, these safe harbor exceptions are narrowly circumscribed and must be. S 20a7bb the anti kickback statute is a criminal law that applies broadly and prohibits the knowing and willful payment of remuneration to induce or reward patient referrals or the generation of business involving any item or service payable by the federal health care programs. Hospital consignment arrangement and chargeback obligation. Thomas s crane, samantha kingsbury, karen lovitch, carrie roll. Violations of stark can result in a range of sanctions such as civil penalties, denial of payments for the services provided in violation of stark, and exclusion from. Many of these statutes are similar to the federal statute providing for prosecution and fines for kickbacks or rebates in cases where state funds are used to pay for the services or items provided.
Specific intent is required for aks violations but not for stark law violations. 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. 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. Its origins, complexities, and most recent judicial developmentst douglas a. The intent of the clarifications is to make the regulations easier for the. Seventh circuit embraces use of one purpose standard. In so doing, the court affirmed the socalled one purpose standard that holds. Antikickback statute and stark law constantine cannon. A survey of health care antikickback law at the state.
Health care fraud and abuse laws affecting medicare and. The antikickback statute makes it illegal for providers including physicians to knowingly and willfully accept bribes or other forms of remuneration in return for generating medicare, medicaid. Examine the requirements of the medicare antikickback. The federal antikickback statute does have relevance to all multidisciplinary hearing healthcare practices as anyones activity potentially including a contracted physician or audiologist. Loans made to certain individual practitioners should qualify for a different safehabor to the antikickback statute, such as the practitioner recruitment safe harbor 42 c. Stark law and antikickback statute cases that can kill your healthcare venture. Antikickback statute provides that it is fraudulent to solicit, offer. The federal anti kickback act incurs a criminal violation charge because it requires a specific intent to induce referrals or orders for services. Federal antikickback exception attorneys oberheiden, p. Borrasi, the seventh circuit aligned with the third, fifth, ninth, and tenth circuits in determining that the antikickback statute aks is violated where at least a portion of a payment made to a physician was intended to induce that physician to refer patients to the paying entity. The antikickback statute restricts a pharmaceutical firm from offering or paying, directly or indirectly, any remuneration in the form of money or any other thing of value to motivate medicare or champva patients to purchase the companys drugs. Avoiding fraud and abuse in health care lending arrangements. Antikickback exception requires written agreement at fair market value for services provided.
Nevertheless, if an arrangement does meet the specific requirements of a safe harbor then the antikickback statute would not be implicated. What is antikickback act 1986 federal kickback statute. In contrast, the antikickback statute requires specific intent, and violations may result in criminal actions. Violation of the antikickback statute is a criminal offense. 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. The federal aks incurs a criminal violation charge because by definition it requires a specific intent to induce referrals or orders for services. Antikickback statute compliance in healthcare transactions. Employment independent contractor recruitment referral services discounts others 42 cfr 1001.
Medicare antikickback statute the aks makes it a criminal offense to knowingly and willfully offer, pay, solicit, or receive remuneration monetary or anything of value to induce, or in return for, referrals of health care services or items paid for by a federal health care program. The antikickback 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. Therefore, even if an arrangement does not violate the stark prohibitions, it may violate the antikickback statute if the requisite improper intent to induce referrals is present. On the books since 1972, the federal antikickback laws main purpose. A discount is a reduction in price conditioned only on the purchase of the product or service at issue. In 2010, the ppaca amended the intent requirement to clarify that the. The federal antikickback statute and the stark law are often. 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. Aspinwall introduction the antikickback statute is one of the laws the federal government utilizes in its effort to prevent fraud and abuse against publicly.
Moreover, while the antikickback statute requires the government andor relators to show that the party knowingly and willfully engaged in the prohibited conduct, the affordable care act also included an amendment clarifying that they need not show that the defendant had the specific intent to commit a violation of the antikickback statute. This means, if an arrangement implicates the antikickback statute and remuneration is exchanged, then it may not violate the antikickback statute because it lacks the intent or knowledge element. If a reduction in price is conditioned on more than a simple purchase, it is not a mere discount, but rather a form of remuneration whose legitimacy must be evaluated under the antikickback statute separate and apart from the statutory discount exception or regulatory discount safe. Referrals under the antikickback statute include any item or service for which payment may be made in whole or in part under a federal health care program. The antikickback statute, which is 1128bb of the federal social. It further details the anticorruption statute and how it is designed to protect federal health care program beneficiaries from the influence of money on referral decisions and thus is intended to guard against overutilization, increased costs, and poor quality services. Fcpa vs antikickback statute same misconduct, different crimes ostate antikickback statutes ofederal bribery statute, 18 usc 201 ostate bribery statutes ostate commercial bribery statutes ocivil monetary penalties, 42 usc 20a 7aa5 ostate and certain proposed federal legislation to provide transparency around physician relationships. Dont discount govt opinion on antikickback exception.
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