The Anti-Kickback Statute (AKS) is a broad federal law that makes it illegal to knowingly and willfully offer something of value in exchange for patient referrals reimbursed by federal health care programs. The Centers for Medicare and Medicaid Services (CMS) argue that this law protects patients from corrupt medical practices and better ensures they receive medical care that is based on the patient’s medical need instead of financial motivations.
What constitutes illegal remuneration for the purposes of the AKS?
Some of the more common examples of illegal remuneration under AKS include:
- Financial incentives. Cash or other bonuses in exchange for a referral are often investigated as a potential violation of this law.
- Office space. The exchange of a rental rate for office or clinic space that is too low compared to market value or free rental space can also qualify as an AKS violation.
- Gifts. The gifting of expensive accommodations, meals, tickets to sporting or entertainment events can trigger an investigation.
- Excessive compensation for speaking engagements. There are situations when a medical professional presents at different conferences. Although often acceptable, there are times when the government believes the parties involved will use the speaking engagement as a guise to hide an illegal kickback. As a result, the presence of what the feds view excessive compensation for these engagements can also lead to allegations of fraud.
The investigation will serve to gather evidence to support charges. If enough evidence is found, the charges could move forward to a potential conviction.
How serious are AKS penalties?
A failure to abide by the rules of the AKS can come with serious consequences. If the government can establish a violation the accused can face up to five years in jail and a fine of up to $50,000 per kickback as well as an additional three times the amount of the remuneration.
The government can also exclude the accused from future participation in Federal health care programs.
Are there any exceptions?
There are statutory exceptions and safe harbors that can protect physicians and others facing allegations of an AKS violation. These can include rental arrangements and financial investments in healthcare facilities but need to follow the rules exactly to qualify for the exception. It is wise to have a legal professional experienced in these matters review any such arrangements to better ensure they meet these requirements.
Attorney John Rivas is responsible for this communication