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Anti-Kickback Statute

In an effort to decrease healthcare abuse and fraud, the federal government implemented the Anti-Kickback Statute. The law prohibits the willful and knowing payment or “remuneration” to reward or induce patient referrals. The statute also forbids the same practice to generate additional business involving any service or item payable by a federal healthcare program such as healthcare services from Medicaid or Medicare. It’s important to remember that under the federal law “remuneration” does not just include cash. The federal government will consider anything of value as remuneration including free rent, expensive meals, lavish hotel stays, etc.

The administrative and criminal penalties associated with violating these laws are harsh. A conviction can result in jail time, fines, and exclusion from participation in future federal healthcare programs. Thankfully, there are safe harbors to protect certain payment and business practices that would otherwise be subject to criminal prosecution. To learn more and speak to a qualified attorney, contact Goldstein & Orr.

Texas Anti-Kickback Statute Lawyer | Federal Healthcare Fraud

When investigating instances of healthcare fraud, the federal government will not hesitate to utilize their extensive resources in order to identify and prosecute offenders. At Goldstein & Orr, our experienced Texas federal healthcare fraud lawyers deliver proactive counsel to ensure providers are compliant and can provide immediate aggressive representation if criminal prosecution is on the table. Protect yourself and your freedom today with Goldstein & Orr.

You can set up your first consultation with Goldstein & Orr by calling our San Antonio office at (210) 226-1463 or simply submit an online contact form. Goldstein & Orr accepts clients throughout the entirety of Texas including Travis County, Bexar county, Atascosa County, Austin County, Blanco County, Webb County, Williamson County, Wilson County, Bastrop County, and many more.

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Federal Anti-Kickback Laws

The intent of the Anti-Kickback Statute is to eliminate fraud by healthcare providers who are abusing federal healthcare programs and patient referrals. The criminal statue prohibits the exchange (or offer to exchange) anything of value in order to induce the referral of business reimbursable by federal health programs such as Medicare or Medicaid.  The crime is located under the 42 U.S. Code § 1320a–7b, which lists the following elements

  • It’s illegal to knowingly and willfully receive or solicit a remuneration(s) overtly or covertly, directly or indirectly, through a bribe, kickback, or rebate, in cash, etc.
    • In exchange for referring a person to another individual or entity furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or partially under a federal healthcare program.
    • In exchange for leasing, ordering, purchasing, or arranging for or recommending leasing, purchasing, or ordering any facility, service, good, or item for which payment will be made either partially or in full under a federal healthcare program.

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Anti-Kickback Statue Safe Harbors

The consequences for violations of federal Anti-Kickback laws are incredibly harsh. Thankfully, the U.S. Code does provide several safe harbors for healthcare providers, so they don’t face administrative and criminal prosecution. Under federal law, a safe harbor is a specific arrangement that is exempt from any criminal or civil conviction.

Listed below are several Anti-Kickback safe harbors that could save an individual from criminal prosecution under the federal jurisdiction.

  • Any payments for renting office space or leasing equipment
  • Any investment in an ambulatory surgical center
  • Compensation for legitimate employees on payroll
  • Payments made for health practitioner recruitment
  • Any personal services and management contracts
  • Any value-based arrangements with full financial risk to the provider
  • Any care coordination arrangements in order to improve health outcomes, efficiency, or quality without requiring parties to assume risk
  • Any value-based arrangement where a substantial downside financial risk is involved

It’s important to note that protection under a safe harbor exists only if the arrangement meets the qualifying criteria listed under the U.S. Code. Healthcare providers should reach out to an attorney so they can conduct a thorough evaluation of their referral and payment arrangements and ensure they are in compliance with Anti Kick-Back Statute safe harbor laws.

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Anti-Kickback Statute Examples

  • Pharmacy companies that pay physicians, facilities, or pharmacy providers to use or prescribe their drugs instead of competitors. Any revenue sharing or any other payment based on the value/volume of the healthcare items ordered could also violate AKS laws.
  • Medical device manufacturers or clinical laboratories who pay physicians or health care facilities for using their services or products.
  • Offering investment interests, space or equipment deals, and excessive compensation to physicians in order to encourage the physician to refer patients or utilize a specific healthcare service or facility
  • Physicians receiving some type of performance bonus which is measured by the number of lab tests ordered at the hospital
  • Any kickbacks paid through “consultant fees” for services that require few substantive duties by a physician.

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Anti-Kickback Statute Penalties

Violations of federal Anti-Kickback laws is a criminal action, and if discovered, the U.S. District Attorney’s Office will not hesitate to prosecute possible offenders. The crime is classified as a federal felony, which can have a severe effect on your reputation, personal life, and reputation. In order to prove a violation occurred, the prosecution must prove with evidence the individual or entity “knowingly and willfully” violated the law.

Listed below are the possible civil and criminal penalties per violation of Anti-Kickback laws.

  • Up to 5 years in prison
  • A fine of up to $25,000
  • Civil fines of up to $50,000
  • Exclusion from federal Healthcare programs
  • Civil assessment of up to three times the amount of the kickback
  • Revocation of medical license

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Additional Resources

Anti-Kickback Laws Under Federal Law | U.S. Code – Visit the official website for the U.S. Code to read the statutory language surrounding Anti-Kickback laws. Access the site to learn the specific elements of the crime, review its list of safe harbors, and other related offenses.

Fraud & Abuse Laws | HHS-OIG – Visit the official website for the U.S. Department of Health and Human Services—Office of Inspector General to learn more about Anti-Kickback statutes. Access the site to learn what you can do to avoid kickback schemes, how you can ensure you’re in compliance, and other helpful information including a Roadmap for New Physicians and where to go if you think you were unknowingly involved in a kickback scheme.

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Anti-Kickback Defense Attorney, San Antonio TX

Are you under investigation or have been arrested for being involved in a kickback scheme? If so, it’s imperative you seek legal representation as soon as possible. The penalties surrounding these crimes are great, and without legal counsel you could find yourself behind federal prison bars for years and be obligated to pay huge civil and criminal fines. To speak to an experienced Texas anti-kickback defense lawyer, call our legal team at (210) 226-1463.

Schedule your first consultation today with Goldstein & Orr by calling our offices at (210) 226-1463.  Goldstein & Orr has offices in San Antonio, however we accept clients throughout every part of the State of Texas.

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