The Federal Anti-Kickback Statute Explained
One of the most common allegations in physician disciplinary proceedings and federal investigations is violation of the Anti-Kickback Statute. Roughly 2,500 individuals come under Medicare fraud investigation annually, and roughly 1,400 of those individuals are indicted each year on healthcare fraud charges in federal court. Under federal law 42 U.S.C. § 1320a-7b(b), also known as the Anti-Kickback Statute, it is a felony for anyone receiving reimbursement from a federal healthcare program to knowingly and willfully receive remuneration or offer remuneration in order to acquire business. The two elements of this crime are remuneration between two parties and said remuneration was carried out with illegal intent. After the passage of the Patient Protection and Affordable Care Act, the government no longer has to prove specific intent to violate the Anti-Kickback Statute. One of the intents of the Affordable Care Act was to lower the standard for proving that healthcare fraud occurred.
What Constitutes Remuneration Under the Anti-Kickback Statute
Remuneration can be anything of value, including gifts or cash. Donations and consulting fees are also considered remuneration under the law, as are referrals. Even a payment arrangement can be considered remuneration in the eyes of the federal courts, which have set a precedent of a broad interpretation of this statute. Therefore, if remunerations were exchanged, the best defense is to prove to a judge or jury that there was no illegal intent behind the remunerations.
The Element of Intent
Ignorance of the law is no excuse. Due to the passage of the Affordable Care Act, the government no longer has to prove that anyone accused of violating the Anti-Kickback Statute knew their behavior was illegal at the time the alleged misconduct occurred; only that the alleged misconduct was committed knowingly and willfully by the accused.
The government does, however, have to prove that there was illegal intent when remunerations were offered or received. It is good business sense to be mindful of the intent behind any gift, rebate, referral, or exchange of cash, goods, or services to be sure that one is doing business legally; however, if these exchanges have already occurred, being able to show a legitimate intent behind such remunerations is essential to avoiding prosecution or civil penalties.
Safe Harbors Explained
Simply put, a safe harbor is an exception to the law that shows no illegal intent occurred. If you can prove that your situation constitutes a recognized safe harbor, you can steer clear of civil and criminal penalties. Examples of safe harbors include, but are not limited to, lease agreements for offices, contracts for equipment rental, payment to legitimate employees of your business practice, electronic health records services, referral services, price reductions to group health insurance plans, and ambulatory surgical centers.
Another exception of a safe harbor is an exception in the law that allows physicians to invest in the healthcare facilities to which they refer their patients. There are limits to this exception, which states that no more than 40% of the value of the investment may come from individuals who are in a position to refer their patients to the facility, and that no more than 40% of the facility’s revenue may come from said referrals. In these instances, remuneration may be done with “good intent” and not constitute a violation of the law.
Additionally, when an investment interest is offered to a passive investor who is in a position to furnish goods and services, induce business, or make referrals, that investment must be no greater than what is offered to other passive investors who are not in this position.
A healthcare fraud attorney can help your business understand which safe harbors exist and whether an allegation of misconduct falls under a safe harbor scenario.
Civil and Criminal Penalties for Violating Anti-Kickback Laws
Anyone who violates federal anti-kickback laws risks both civil and criminal penalties. It is important to know whether the government is seeking monetary damages civilly or seeking a criminal indictment and imprisonment upon conviction. An experienced healthcare fraud attorney can help discern which civil or criminal penalties you may be facing, and we would be happy to discuss your unique situation during a free and confidential consultation with one of our attorneys. Although the involvement of a prosecutor does not necessarily mean the government is seeking a criminal conviction, we do ask our clients how they were informed of the investigation, which agency is in charge, and who contacted them to determine what the possible penalties may be. When we consult with our clients, we want to know every detail so that we can successfully defend you or your business in a healthcare fraud case.
Who May Be Investigated for Kickback Fraud
If you are wondering whether or not your business may be at risk of an investigation for violating anti-kickback laws, the simple answer is that anyone in the business of healthcare can be subject to an investigation, including both professional healthcare providers and non-licensed healthcare workers. Examples include physicians, physician’s assistants, nurses, laboratories, compound pharmacies, medical device companies, and imaging centers.
Protect Yourself and Your Business from Investigation
The best way to protect yourself or your healthcare business as a practitioner is to follow the law. We have worked with numerous clients who requested our assistance with compliance programs, meeting safe harbor requirements, and evaluating a fair market value for their services. A good healthcare fraud defense attorney knows the industry and has experience fighting healthcare fraud cases in federal court. If any violations do exist, a healthcare fraud attorney may be able to show that these violations were accidental and occurred due to human error, which may result in reduced penalties or have our clients’ cases dismissed. Due to the serious nature of these accusations, you will want an experienced legal team such as the Healthcare Fraud Group in charge of planning your defense strategy in order to ensure the best possible outcome for you or your healthcare business.
Who We Are – Healthcare Fraud Group
We are Bell, P.C., a team of lawyers known as the Healthcare Fraud Group. Our experienced group of attorneys and other legal professionals have a proven track record defending individuals and businesses in healthcare fraud cases for many years. We have a collective total of over a century of experience. Our network includes former U.S. Attorneys, former Assistant U.S. Attorneys, and U.S. Department of Justice (DOJ) attorneys who collaborate to fight for our clients in high-stakes healthcare fraud cases. Our experience working on both sides of federal investigations, healthcare fraud trials, and appeals helps us understand every detail of our clients’ cases.
We have extensive experience within the healthcare industry and will use our knowledge to plan your defense strategy. Due to the ambiguity of the current laws, most violations of anti-kickback laws are not obvious. We will use our extensive familiarity with healthcare fraud laws as we work to demonstrate that any alleged misconduct that occurred was not in violation of federal statutes. We are detail-oriented and are skillful negotiators, and we want to use our experience to help our clients win their cases.
Aside from our work in healthcare fraud cases, we also have extensive experience successfully defending clients who have been under investigation by the Federal Bureau of Investigation, as well as the DOJ, DEA, IRS, DHHS, OIG, and CMS.
In addition to our credentials and combined decades of experience, our proven track record of successfully defending our clients speaks for itself. Some of our recent successes on behalf of our clients include:
- Our legal team won the largest verdict in the nation in 2017 and the ninth-largest in United States history, more than six billion dollars, against JPMorgan Chase Bank for fraud, malice, breach of fiduciary duty, and gross negligence.
- We served as lead counsel for a pharmaceutical company against TWINMED in a $10 million arbitration and won the case for the defendant.
- In a confidential dispute, our client was awarded $50 million.
- We served as lead counsel for Qui Tam in a healthcare lawsuit. Case dismissed.
- We served as lead counsel for a medical center in a dispute with a hospital. Our client was awarded a sizeable jury verdict plus attorney’s fees.
- We recently successfully defended a healthcare company in a fraud investigation by the FBI and the US Attorney’s Office. The result was no civil or criminal liability.
Call The Healthcare Fraud Group Today
If you or your business or organization is facing a healthcare fraud investigation, you have much to lose, including civil and criminal penalties and damage to your reputation. Do not risk your livelihood or your freedom. You need an experienced healthcare fraud attorney on your side. The team at Bell, P.C. has over 100 years of combined experience fighting for our clients under investigation for healthcare fraud, and we have a track record of successful litigation. We are here to help you clarify the reasons for the accusation against you, whether you are facing civil or criminal penalties, and which specific penalties you may be facing.
Call us today so that we can get started working on your federal anti-kickback case immediately by mounting your defense or consulting with you to create a successful compliance program for your business or organization.
Contact us via our website or call us at 888-402-4054 for a free and confidential consultation so that we can get to work assisting you as soon as possible.