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What is the Anti-Kickback Statute?
Wednesday, January 11, 2023

The Anti-Kickback Statute is a powerful anti-fraud law designed to remove the profit motive from medical referrals and decision-making. The Anti-Kickback Statute, like the Stark Law, applies to all medical services that are funded by Medicare, Medicaid, and other federal healthcare programs. 

As much as possible, medical decisions and recommendations should be based only on the needs of the individual patient and what will be best suited to their care. Unfortunately, at times health care providers and industries are motivated instead by the urge to make money off patients who come to them for help. The intent of the Anti-Kickback Statute is to move providers as far away from a for-profit mindset as possible, by de-incentivizing and even criminalizing recommendations based purely on financial gain. 

What Does the Anti-Kickback Statute Prohibit?

The Anti-Kickback Statute makes it illegal for healthcare providers to offer or accept gifts, bribes, payments, or other financial incentives in exchange for referrals, prescriptions, or other medical services when those services will be paid for partly or wholly by Medicare, Medicaid, or other government-funded health programs. The exchange of benefits as incentive is prohibited by the Anti-Kickback Statute, as is the offer to exchange said benefits—even if the bribe or payment is never carried out. 

It is important to understand that the government does not have to illustrate financial loss or even patient harm in order to find a health care provider in violation of the Anti-Kickback Statute. Even if the recommended service was medically necessary for a patient's care, accepting the kickback in the first place puts a health care provider in violation of this criminal law. 

Anti-Kickback Statute Remuneration Definition 

The Anti-Kickback Statute offers a very broad understanding of what constitutes a kickback. The Anti-Kickback Statute defines "remuneration" as anything of value in order to induce recommendations and medical referrals. Examples of possible remuneration prohibited under the Anti-Kickback Statute include, but are not limited to:

A Comparison of the Anti-Kickback Statute and Stark Law

While both the Anti-Kickback Statute and Stark Law are in place to prevent financial incentive from informing medical referrals, they carry vastly different penalties. The Anti-Kickback Statute is a criminal law that also involves civil penalties. The Stark Law is a civil statute that can carry even higher financial fines, but not the threat of imprisonment. 

The Stark Law prohibits medical personnel such as doctors, dentists, and chiropractors from making referrals or accepting referrals from anyone with whom they or a family member have a financial relationship. The Stark Law applies only to Medicare and Medicaid patients. It also does not cover referrals made by mid-level providers, such as physician's assistants. 

What Is a Referral Under the Anti-Kickback Statute?

Under Anti-Kickback Statute policy and procedure, referrals, just like remuneration, may take a variety of forms. Some processes defined as referrals under the Anti-Kickback Statute include: 

Who Does the Anti-Kickback Statute Apply to?

The federal Anti-Kickback Statute prohibits offering financial payments and incentives to the following groups of people:

What Are the Penalties for Violating the Anti-Kickback Statute? 

Violating the Anti-Kickback Statute can carry criminal charges, such as the possibility of up to five years in jail as well as civil penalties of up to $25,000 per claim. Under the Civil Monetary Penalties Law (CMPL), possible additional penalties of $10,000 to $50,000 per violation may be assessed. Additionally, health care providers who are convicted of violating the Anti-Kickback Statute may be excluded from Medicare and Medicaid program coverage in the future. Finally, violating the Anti-Kickback Statute may open up a provider to False Claims Act liability, which is a federal civil statute involving up to treble penalties per false claim made to the government. 

What is an Example of the Anti-Kickback Statute?

Anti-Kickback Statute violations have been involved in several recent notable cases prosecuted under both the criminal statute and False Claims Act liability. 

Anti-Kickback Statute Safe Harbors 

The Anti-Kickback Statute prohibits many financial exchanges in healthcare, with the exception of federal Anti-Kickback Statute safe harbors. Safe harbors are analyzed by the Office of the Inspector General, and may be updated to fit the situation. Examples of previously authorized safe harbors that are not considered in violation of the Anti-Kickback Statute include:

Speak to a Healthcare Fraud Whistleblower Attorney

Whether you are a physician, marketing professional, patient, or anyone who works in healthcare, the Anti-Kickback Statute has the capacity to shape your decision-making. If you have information about how this criminal statute has been ignored or violated, you may be able to become a whistleblower. Acting as a whistleblower may open the door to receiving financial awards and protections.

The Anti-Kickback Statute is a complicated and comprehensive area of law involving criminal as well as civil penalties. When in doubt, speak with a qualified attorney to understand how to report wrongdoing and protect yourself today. 

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