The Anti-Kickback Statute is one of the best known federal fraud and abuse statutes, due largely to its wide-ranging effects on business relationships in the healthcare industry. The Anti-kickback Statute is a criminal statute that prohibits transactions intended to induce or reward referrals for items or services reimbursed by the federal healthcare programs. At its heart, it is an anti-corruption statute designed to protect federal healthcare program beneficiaries from the influence of money on referral decisions and thus is intended to guard against overutilization, increased costs, and poor quality services.
The Anti-Kickback Statute 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 healthcare programs. Remuneration includes anything of value and can take many forms besides cash, such as free rent, expensive hotel stays and meals, and excessive compensation for medical directorships or consultancies. In some industries, it is acceptable to reward those who refer business to you. However, in federal health care programs such as Medicare, paying for referrals is a crime. The statute covers those who offer or pay remuneration as well as those who solicit or receive remuneration. Each party’s intent is a key element of their liability under the Anti-kickback statute.
Physicians and other healthcare providers make many referrals that do not violate the Anti-Kickback Statute by taking advantage of the “safe harbors” that are written into the Statute and exempt certain referral arrangements from its prohibitions. Some of the “safe harbors” include: (1) referrals made as part of an employment or professional services arrangement; (2) payments made for the lease of equipment or office space; and, (3) certain payments made for the purposes of physician recruitment.
Because the legal requirements associated with these “safe harbors” can be complex and technical, a physician or group practice may wish to consider retaining healthcare counsel to evaluate a proposed referral or payment arrangement before it is put into place to determine whether the arrangement potentially violates the Anti-Kickback Statute, or falls within one of the “safe harbors.”
Concierge Healthcare Attorneys, LLC is very experienced with the Anti-kickback Statute. I have written extensively on the subject, have published articles for consumption by physicians and residents, and have taught courses on the subject. I am ready to assist you with all your Anti-kickback Statute questions.