Understanding the Anti-Kickback Statute

The Anti-Kickback Statute (AKS) is a federal law designed to protect patients and federal healthcare programs from fraud and abuse by prohibiting the exchange of anything of value to induce or reward the referral of business reimbursable by federal healthcare programs.

Overview of the Anti-Kickback Statute

The AKS makes it a criminal offense to knowingly and willfully offer, pay, solicit, or receive any remuneration to induce or reward referrals of items or services reimbursable by a federal healthcare program. 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.

What is the Anti-Kickback Statute for fraud?

The statute is intended to prevent fraud and abuse in federal healthcare programs by making it illegal to exchange (or offer to exchange) anything of value in an effort to induce the referral of federal healthcare program business. Violations can result in criminal penalties, civil fines, and exclusion from participation in federal healthcare programs.

Prohibited Conduct and Examples

Under the AKS, both sides of an impermissible “kickback” transaction can be held liable. This means that both the person offering or paying the kickback and the person soliciting or receiving it may face prosecution.

What is an example of a violation of the Anti-Kickback Statute?

For example, if a laboratory pays a physician for every patient the physician refers for testing, and those tests are billed to Medicare, both the laboratory and the physician could be prosecuted under the AKS. Similarly, providing free or discounted office space to a physician in exchange for patient referrals is another common violation.

Are fraud bribes and kickbacks legal?

No, bribes and kickbacks in the context of federal healthcare programs are illegal under the Anti-Kickback Statute. The law is specifically designed to prevent such practices, which can lead to overutilization, increased program costs, corruption of medical decision-making, and patient harm.

Exceptions and Safe Harbors

While the AKS is broad, there are certain statutory exceptions and regulatory “safe harbors” that protect specific payment and business practices that, while potentially suspect, are not treated as offenses under the statute if they meet certain requirements.

What is allowed under the Anti-Kickback Statute?

Safe harbors include properly structured employment relationships, certain investment interests, and payments for services that are fair market value and not tied to the volume or value of referrals. These safe harbors are designed to allow legitimate business arrangements while still protecting against fraud and abuse.

Penalties for Violations

Violating the AKS can result in significant criminal and civil penalties, including fines, imprisonment, and exclusion from participation in federal healthcare programs. The government takes enforcement of the AKS very seriously, and healthcare providers should ensure that their business practices comply with the law.