The Anti-Kickback Statute (AKS) is a federal, criminal statute that makes it illegal to provide any form of remuneration in exchange for referrals of patients who receive benefits from government programs, like Medicare. This includes everything from cash payments for referrals to provision of fancy meals.
Although the goal behind the rule, to make sure doctors focus on patient care and not financial gain, is noble the reality is not as ideal as lawmakers likely hoped. The law can serve as a hurdle to patient care and can make it difficult for physicians to work with other practices and market their services.
How do physicians’ market their services without running afoul of this law?
There are situations when marketing practices can fall within a safe harbor. Safe harbors for the AKS are practices that are not treated as a criminal offense. Some examples of permissible business activities include certain:
- Investment interests
- Provision of rental space
- Employee compensation
- Recruitment efforts
Each safe harbor has a specific set of requirements. A failure to follow these requirements will result in denial of the safe harbor protections and potential prosecution for a violation of the AKS.
The rules are complex, and a misstep can result in civil liability and allegations of criminal wrongdoing. It is also important to note that the rules are not static. They are evolving and lawmakers can make changes that impact the application of the regulation. To make matters even more complicated, the AKS is just one of many regulations that can impact medical marketing practices. Additional federal and state rules can apply. As such, it is generally a good idea to seek legal counsel experienced in this niche area of healthcare law whether putting together an initial marketing plan or looking to review current practices for compliance.
Attorney John Rivas is responsible for this communication