What is the Anti-Kickback Statute?

What is the Anti-Kickback Statute?

We often get the question: “What is the Anti-Kickback Statute?” The Anti-Kickback Statute or “AKS” has been the source of many False Claims Act cases and brought whistleblowers hundreds of millions of dollars (see, for example settlement against Covidien). The Anti-Kickback Statute, in sum, is a law that seeks to ensure the quality of patient care and deter abuse of federal health care programs by proscribing certain conflicts of interest that arise when third-party payors cover the cost of treatment.

For Lawyers: What is the Anti-Kickback Statute

Legally speaking, the Anti-kickback statute prevents “inappropriate financial considerations from influencing the amount, type, cost, or selection of the provider of medical care received by a federal health care program beneficiary.” Its anti-referral provisions prohibit individuals and entities from “knowingly and willfully solicit[ing] or receiv[ing] any remuneration . . . in return for referring an individual . . . for . . . any item for service” if a claim will be submitted to Medicare. See 42 U.S.C. § 1320a-7b(b)(1)(A).

Exceptions to the Anti-Kickback Statue

Congress also recognized that certain business relationships between physicians and health care entities are both cost effective and beneficial to patient care. Physicians often find it efficient to refer patients to the health care entities that employ them, rent office space to them, or have some other type of economic relationship with them. These referrals benefit patients’ treatment by giving them convenient access to essential services. Both statutes feature exceptions allowing physicians to refer patients to health care entities when those referrals do not implicate the concerns underlying the Stark or Anti-Kickback Acts.

Anti-Kickback Statute Claims Under the False Claims Act

Congress has long viewed the elimination of kickbacks as central to any efforts to combat Medicare and Medicaid fraud and abuse. See United States v. Greber, 760 F.2d 68, 70-71 (3d. Cir. 1985).To protect against the erosion of patient care and patient safety, courts uniformly agree that compliance with the Anti-Kickback Statute is a material condition of payment under the Medicare/Medicaid programs. The AKS was recently amended to expressly state what these courts had already held, namely, that a violation of the
Anti-Kickback Statute constitutes a “false or fraudulent” claim under the FCA.  42 U.S.C. § 1320(a)-7b(g).

What to do if you think there is an Anti-Kickback Statute Violation?

Contact an experienced whistleblower lawyer. The Anti-kickback Statute is complicated and requires analysis by an experienced False Claims Act lawyer. False Claims Act cases involving kickbacks have been wildly successful and the government has collected hundreds of millions of dollars from defendants for wrong-doing. The California Insurance Fraud Prevention Act also allows recourse for fraud on private insurers for kickback violations.

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