Could You Be Unwittingly Violating the Federal Anti-Kickback Statute?

Referring patients to a specialist—podiatrist, neurologist, or ENT, for example—is a common outcome for many patients seen by general practitioners and internists. Webs of connected medical professionals are more complex than ever. While many can interpret that as one of many signs of an advancing health care system, government programs are keen to make sure medical referrals, services, and products are made in good faith. 

In 1986, Congress passed the federal Anti-Kickback Statute (AKS). This law prohibits “remuneration” for patient referrals or arrangements for furnishing of products or services that are paid by a federal health care program. AKS violations typically involve Medicare, though they are occasionally associated with Medicaid or TRICARE. 



Common Anti-Kickback Statute Violations

An example of one of the most blatant AKS violations would be a doctor who receives money for referring his patients to a particular gastroenterologist. This distilled version of an AKS violation usually manifests itself through more complex schemes and illegal arrangements. Such a scheme might involve:

• A specialist who rents out a space in her medical facility to a physician at a discounted rate (below fair market value). In turn, the physician refers patients to the specialist; 
• A doctor who is paid “consultant” or “advisor” fees by specialists who receive referrals from the doctor; a sign of illegal kickbacks in this situation would be the absence of actual services rendered by the doctor purported to be a consultant; 
• Unfair investment opportunities in medical facilities for doctors who pledge to refer patients to the completed facilities; 
• Payments to doctors who send specimens to certain laboratories or testing facilities; or 
• Pharmaceutical companies who simply pay doctors to prescribe their medications. 
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Why the Government Cares About Illegal Kickbacks? 

The Department of Justice and Health and Human Services aggressively prosecute AKS violations for more reasons than wasted tax money. At a basic level, the federal government asserts that patients deserve to be treated by health care professionals who have the best interests of the patient in mind. Receiving or providing kickbacks provides obvious incentives that may result in unnecessary tests or procedures for patients. Unfair competition among medical providers is also a concern of federal agents. 

Penalties for Anti-Kickback Statute Violations

A conviction for a federal AKS violation carries a maximum prison sentence of five years and a fine of up to $25,000. Those convicted are usually subject to a period of disbarment from participating in public health care programs. Additionally, civil penalties may be levied against violators. The amount per penalty can reach up to $50,000 plus three times the monetary value of the remuneration involved in the violation. 

Conclusion

Even during the COVID-19 pandemic, federal prosecutors brought a substantial number of AKS charges against alleged wrongdoers. If you are being investigated for AKS violations or have already been charged, the next thing to do is call an experienced criminal defense attorney. The Law Office of Kevin B. Ross has years of experience defending clients against alleged federal Anti-Kickback Statute violations. Contact us today to set up a free consultation.