Summary of selfreferral and antikickback regulations. Antikickback statute definition of antikickback statute. If you are facing kickback charges, you should should seek advice from a michigan kickbacks lawyer as soon as possible. Understanding the antikickback law clinical advisor. The antikickback statute broadly defines remuneration and applies to any kickback, bribe, discount, or rebate, in cash or in kind. The antikickback statute arose out of congressional concern that payoffs to those who can influence healthcare decisions will result in goods and services being provided that are medically inappropriate, unnecessary, of poor quality, or even harmful to vulnerable patient populations. Under the federal antikickback statute, it is a felony for a person to knowingly. Antikickback statute compliance training intelligence. 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. The alleged violation under both the antikickback statute and the stark law centered on the whistleblowers argument that the lease agreements conferred a financial benefit on physician tenants primarily, because they were not required to reimburse baycare for garage or valet parking that was available to the tenants, their staff and. Recent settlements and corporate integrity agreements highlight the need for vigilant and more effective training for these programs. Antikickback statute compliance in healthcare transactions.
Apr 09, 2020 the anti kickback statute is a us law prohibiting a business or person from offering money to medical personnel in return for the recommendation of products or services to patients on certain federally covered medical programs, including medicaremedicaid. Following the federal governments lead, states, including michigan, enacted their own antikickback statutes. November 2018 antikickback statute and physician self. There is no federal preemption provision under the statute. The antikickback statute and ems ambulance billing. Congress originally enacted the antikickback statute as part of the social security amendments of 1972. As we have reported in the past, this law has proven vital in the prosecution of several unscrupulous. Violations of the antikickback statute can be penalized severely under federal or michigan law. This april, providers cheered when a federal district court in the middle district of florida found insufficient evidence to support a relators theory that a hospital had provided free parking to physicians, in violation of the stark law and antikickback statute aks.
The antikickback statute and marketing april 20 anjana d. As a criminal law, the antikickback statute requires the defendants solicitation or receipt of prohibited remuneration to be done in a knowing and willful manner a stringent mens rea intent standard. Chapter 1815 hospice and nursing home relationships overview hospice care is an approach to treatment of a terminally ill patient that focuses on the relief of pain and suffering associated with a terminal illness. Avoiding fraud and abuse in health care lending arrangements. Kickback, as used in this clause, means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided to any prime contractor, prime contractor employee, subcontractor, or subcontractor employee for the purpose of improperly obtaining or rewarding favorable treatment in connection with a prime contract or in connection with a. Manufacturers may reduce the potential antikickback and cost report concerns. Jackie bain providers of healthcare items or services are wellserved to take note. Recent federal cases medicare antikickback statute medtrade. Federal and state antikickback and inducement laws what is the federal antikickback statute. However, failure to fit in a safe harbor does not mean that an arrangement violates the anti kickback statute.
The price you may pay for being in violation of the antikickback statute is nothing to take lightly. A violation of the antikickback 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. Kickback statute and stark law compliance in managed care contracts navigating safe harbors and physician incentive plan rules, limiting civil monetary penalty exposure.
Arrangements that do not fit in a safe harbor are analyzed on a casebycase basis. Antikickback statute cannot knowingly and willfully offer, pay, solicit or receive remuneration to induce referrals for items or services covered by government program unle ss transaction fits within a regulatory safe harbor. Kusserowt the medicare and medicaid antikickback statute makes it a crime to knowingly and willfully offer, pay, solicit or receive remuneration in exchange for the referral of business covered under. Physicians guide to louisianas antikickback statutes and stark law authored by w. Federal and state antikickback and inducement laws. When it comes to eliminating fraud and abuse in the health care industry, the federal government utilizes many resources to initiate audits and investigations, as well as several laws when prosecution and penalties are sought. Chapter 1815 hospice and nursing home relationships. The anti kickback statute arose out of congressional concern that payoffs to those who can influence healthcare decisions will result in goods and services being provided that are medically inappropriate, unnecessary, of poor quality, or even harmful to vulnerable patient populations. The most consistent challenge and perhaps the most unique to healthcare is satisfying the many laws and regulations in place when leasing space from certain.
Questionable practices by hospices and nursing homes. Thus, conduct that is lawful under the federal anti kickback statute or this regulation may still be illegal under state law. History and development of the antikickback statute 42 u. It is a felony to violate the anti kickback statute. The federal anti kickback 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. Nov 14, 2017 the false claims act, stark law and anti kickback statute. Nov, 20 the broad scope of the anti kickback statute has been limited only by its required nexus to federal health care programs such as medicare and medicaid, and the power of the anti kickback statute. Congress passed federal antikickback laws to protect patients from medical referrals based upon the healthcare provider receiving a kickback or financial incentive, rather than on medical necessity.
Ntsoc is committed to conducting its business transactions and practices in compliance with the antikickback statute and analogous state laws. Department of health and human services the oig published in the federal register a final rule final rule that, among other things, adds three new safe harbors to the anti kickback statute, and expands the exceptions to the definition of remuneration that is prohibited under the civil monetary penalties cmp statutes and regulations. The aks prohibits the pharmacy from giving anything of value to a. Century code, relating to state medical antikickback laws. May 01, 2012 health care law expands false claims act liability under antikickback statute with president obamas signing of the patient protection and affordable care act in 2010, the antikickback statute has more teeth than ever before. Additionally, violation of the anti kickback statute may result in exclusion from the federal healthcare programs such as medicare and medicaid. There is much confusion between the federal antikickback statute and the stark law because both laws deal with remuneration related to improper referrals. There can be confusion understanding the differences between the antikickback statute and the. Aspinwall introduction the antikickback statute is one of the laws the federal government utilizes in its effort to prevent fraud and abuse against publicly funded health care programs. Applying the antikickback statute the dermatologist. 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.
Rivas goldstein, llp, is a new york city law firm focused on representation of medical professionals and health care providers. Oig adds new antikickback safe harbors, expands cmp. There are many unique obstacles when leasing healthcare properties. Fraud in the healthcare context takes a variety of forms. In late august 2017, a federal judge in pennsylvania held that violations of the federal stark law and antikickback statute that defendants characterized as merely technical were, in fact, material to the federal governments decision to reimburse healthcare entities for goods and services. Antikickback statute legal and regulatory information. Patient assistance programs paps and patient support programs psps are in the news. Five tips for antikickback compliance healthleaders media. Health care fraud and abuse laws affecting medicare and medicaid. The aks, enacted in 1972 and amended on several subsequent occasions, is a not a new development. Kickbacks law and legal definition the anti kickback statute is a federal law which prohibits health care providers and suppliers from giving or receiving remuneration in exchange for the referral of patients or services covered by most federal health programs, such as medicare and medicaid. Aca expands fraud liability under the anitkickback statute. Issues of state law are completely independent of the federal anti kickback statute and these regulations. The effect of the affordable care act upon the federal.
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. Violators may be fined substantial penalties for violations, and may also face probation for organizations or prison for individuals. A bill for an act to create and enact a new section to chapter 2301 of the north dakota. Despite these ongoing activities directed toward healthcare reform, attention should not be distracted from ensuring compliance with the federal antikickback statute aks. The proposed rules represent some of the most significant potential changes to these. Florida antikickback statutes, stark law and patient. Parties may use any applicable safe harbor into which they can squarely fit. Prohibits a physician from referring medicare patients for designated health services to an entity with which the physician or immediate family member has a. Department of health and human services electronic health record incentive program and practice fusions compliance with the anti kickback statute and hipaa as it relates to certain business practices engaged in by practice fusion. Anti kickback statute and stark law in managed care contracts. Health care fraud and abuse laws affecting medicare and. The statute provides criminal penalties for certain acts impacting medicare and medicaid reimbursable services. Before sharing sensitive information, make sure youre on a federal government site. We are deeply familiar with the stark law and the antikickback statute, and routinely provide analysis and legal opinions on whether a certain arrangement is compliant with these laws.
Authorized by the anti kickback provisions of the medicare and medicaid anti fraud and abuse amendments of 1977 and the medicare and medicaid patient and program protection act of 1987. The programs are under increased scrutiny for violations of the antikickback statute, hipaa, and false claims act. Under the federal antikickback statute, it is a felony for a person to knowingly and willfully offer, pay, solicit, or. Michigan kickbacks lawyer understanding the penalties. The fca applies in the healthcare context to individuals and entities that receive reimbursement through government healthcare programs, such as medicare. The federal antikickback statute prohibits the payment or receipt of any remuneration that is intended to induce referrals or the purchasing, leasing or ordering of any item or service that may be reimbursed, in whole or in part, under a federal health care program. The federal antikickback law provides criminal and civil penalties for the payment of any remuneration in exchange for referring or arranging for the referral of health care business reimbursed by medicare, medicaid or other federal health care programs. Amarillo, tx the medicare antikickback statute makes it a felony to knowingly and willfully offer, pay, solicit, or receive any remuneration to induce a person or entity to refer an individual for the furnishing or. The knowingly and willfully continuum of the antikickback.
Certain questionable practices by hospices and nursing homes may violate health care fraud and abuse laws enforced by the department of health and human services, office of the inspector general oig. Despite these ongoing activities directed toward healthcare reform, attention should not be distracted from ensuring compliance with the federal anti kickback statute aks. The office of inspector general for the us department of health and human services discusses the federal antikickback statute. The antikickback statute is just one of several different federal anti kickback regulations that are intended to help protect the integrity of the healthcare system. The federal anti kickback statute was intended to prohibit the practice of paying medical professionals solely to endorse and promote the use of medical devices and products. Passed by congress in 1972, the federal antikickback laws main purpose is to protect patients and federal healthcare programs from fraud and abuse by eliminating the corrupting influence of. Employees of physicians, as in the selfreferral law, are exempt from anti kickback laws see regulation section 1001. Its origins, complexities, and most recent judicial developmentst douglas a. This webinar will explain how violation of the antikickback statute aks can raise false claims act concerns, and will provide an assessment of enforcement activities, showing how participants may be at risk. March 31, 2017 in previous articles, we examined the federal antikickback statute the physicians guide to the.
The authors analyze existing and developing trends in healthcare fraud litigation. According to the department of health and human services, the federal antikickback statute serves one purpose. What is the beneficiary patient inducement statute. After consultation with counsel concerning the federal antikickback law 42 u. All ntsoc employees and contractors shall comply with the requirements of the antikickback statute as well as all related ntsoc company policies and procedures. The federal antikickback statute prohibits the knowing and willful solicitation, offer, payment or acceptance of any remuneration, directly or indirectly, overtly or covertly, in cash or in kind in return for. Below are 20 things to know about the antikickback statute. It prohibits the exchange or offer of anything of value in an effort to influence or reward the referral of federal health care program business. A qualified bribery lawyer could work with you to build a strong defense. 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. In the report and recommendation for united states ex rel. Request for information regarding the antikickback statute and beneficiary inducements. Recent federal cases medicare antikickback statute.
Antikickback statute explained houston health care. Anti kickback statute aks physician selfreferral law stark law social security act, which includes the exclusion statute and the civil monetary penalties law cmpl united states criminal code. The aks is a criminal statute that prohibits transactions intended to induce or reward referrals for items or. Affordable care act, antikickback statute jd supra. Department of health and human services electronic health record incentive program and practice fusions compliance with the antikickback statute and hipaa as it relates to certain business practices engaged in by practice fusion. May 10, 2017 a recent settlement demonstrates the importance of compliant structuring of lending arrangements in the health care industry. Health care fraud and abuse laws affecting medicare.
Acp response to oigs rfi on reforming the antikickback statute. Department of justice doj in march call attention to some of the less common ways to violate the federal antikickback statute aks. Amarillo, tx the medicare antikickback statute makes it a felony to knowingly and willfully offer, pay, solicit, or receive any remuneration to induce a person or entity to refer an individual for the furnishing or arranging for the furnishing of any item or service reimbursable by a federal health care program, or to induce such person to purchase or lease or recommend the purchase or. The federal antikickback statute is a law passed as a part of the social security amendments of 1972 that makes illegal the exchange of money or anything valuable between healthcare professionals or between professionals and patients in exchange for referrals to federal healthcare services includi. Chief among these laws are the federal antikickback statute and the civil monetary penalties statute cmp. Anti kickback law the medicare and medicaid patient protection act of 1987 is referred to as the anti kickback statute i. The speaker will discuss the safe harbors, payment practices that will not be. 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. Apr 22, 2020 the patient protection and affordable care act ppac, also known as obamacare, is a united states federal statute passed in march of 2010. Antikickback law definition of antikickback law by medical. Billingreimbursement recent federal cases medicare antikickback statute. For purposes of the sdp, we refer to all individuals or entities that make a submission to the sdp as disclosing parties.
But there are fundamental distinctions between the two laws. Antikickback statute and stark law building operating management. Antikickback statute and the false claims act mceldrew. Dont discount govt opinion on antikickback exception. It does not require that the referral be made in return for a kickback. The failure to consider health care fraud and abuse risks in connection with lending arrangements can lead to extremely costly consequences. A discount is a reduction in price conditioned only on the purchase of the product or service at issue. Under the federal anti kickback statute, it is a felony for a person to knowingly and willfully offer, pay, solicit, or receive anything of value i. Health service act, that a public health emergency resulting from the outbreak of the novel coronavirus. The massachusetts antikickback statute shall not apply to any discount or free product vouchers that a retail pharmacy provides to a consumer in connection with a pharmacy service, item or.
What to do if the bis is implicated state antikickback and patient inducement law overview government resources all individuals. This post was originally published on this site hipaa, everyones favorite scapegoat for all ok, most of the ills of the modern healthcareindustrial complex, is. Physicians guide to louisianas antikickback statutes. A seventh circuit decision this february and a settlement announced by the u. Instead, it simply defines the term kickback and provides that to offer, pay, solicit, or receive a kickback constitutes patient brokering in violation of the fpba. What to do if the aks is implicated what happens if the aks has been violated. Website template antikickback statute and safe harbors. The federal antikickback statute is a healthcare fraud and abuse statute that prohibits the exchange of remunerationwhich the statute defines broadly as anything of valuefor referrals for services that are payable by a federal program, which, in the context of healthcare. On october 9, 2019, the us department of health and human services hhs published proposed changes to the physician selfreferral law stark law stark proposed rule and the antikickback statute aks and the beneficiary inducement civil monetary penalty law cmpl aks proposed rule.
Legislation enacted to prevent industries from having an unfair advantage in obtaining government contracts, in which a company x would offer an illegal kickback fee to a person instrumental in ensuring that x would get a lucrative contract for a service performed or product sold. Selfdisclosure protocol office of inspector general, u. The florida antikickback statute florida statutes section 456. On december 7, 2016, the office of inspector general u.