Philadelphia Health Care Lawyers Anti-Kickback Law Compliance

Health care providers including physicians and hospitals who treat Medicare or Medicaid patients are eligible to receive reimbursements or payments from the government for their services. To eliminate any incentives for improper referral of medical services in order to obtain improper Medicare or Medicaid payments, medical providers are subject to the requirements of various “anti-kickback” laws. These laws attempt to curtail the overutilization of medical services and to preserve competition among medical providers. Anti-kickback laws include state and federal statutes and state self-referral prohibitions.

Under the federal anti-kickback statute (42 U.S.C. §1320a-7b(b)), individuals or entities that knowingly or willfully offer, pay, solicit or receive remuneration (including kickbacks, bribes or rebates) for the purposes of receiving business payable by Medicare or Medicaid face criminal penalties. Anti-kickback laws prohibit receiving remuneration in exchange for either referring an individual for services, or purchasing or leasing items, services or facilities paid for by Medicare or Medicaid.

Most anti-kickback statutes require proof that the health care provider intended to violate the law by receiving remuneration for Medicare or Medicaid business. Some examples of activities that may violate anti-kickback law include:

• A physician receives below fair market value rent for his medical office in exchange for making Medicare or Medicaid referrals
• A hospital receives cash bonuses for referring Medicare and Medicaid patients to a certain diagnostic testing center or laboratory
• A home health services provider provides below market value patient care coordination services to referring physicians
• A pharmaceutical company provides pharmacy services to nursing homes offering monetary incentives in exchange for the nursing home using their company’s drug supplies for elderly Medicare and Medicaid recipients
• A pharmaceutical company gives kickbacks to physicians and other medical providers in order to increase the sale of certain drugs
• A drug store chain offers promotions such as gift cards to Medicare and Medicaid patients in exchange for prescription transfers
• A hospice provider provides free discharge planning to a nursing home in exchange for hospice referrals

Penalties for Violations of Anti-kickback Laws

Medical providers found in violation of federal anti-kickback laws face severe criminal penalties, including being sentenced to prison for up to five years, fined up to $25,000, and being excluded from future participation in the Medicare program. Civil penalties may be as high as $50,000 per kickback. A violation of an anti-kickback law may also constitute a violation of the False Claims Act. [CITATION]  The U.S. Department of Justice has recently reached several large settlements with violators of federal anti-kickback statutes, including the Amedisys settlement of $150 million and the Omnicare settlement of $124 million.

Safe Harbors

Certain transactions between health care providers which are generally prohibited under anti-kickback statutes may be permissible under “safe harbor” regulations.  These safe harbors include referrals involving:

• Affiliated health centers
• Academic medical centers
• Ambulatory surgical centers
• Electronic prescribing of items and services
• Warranties
• Payments made to bona fide employees
• Investment interests
• Certain discounts
• Practitioner recruitment
• Designated EHR items and services

Health care providers should always consult an experienced health care attorney familiar with state and federal anti-kickback regulations prior to entering into a new business transaction or referral situation.  Experienced anti-kickback lawyers can help ensure compliance with these laws.

Pennsylvania Health Care Lawyers at Michelman & Bricker, P.C. Provide Advice on Compliance with Anti-Kickback Law

At Michelman & Bricker, P.C., our dedicated Philadelphia health care lawyers  work with physicians, hospitals, health care practice groups and other medical providers to ensure compliance with federal and state anti-kickback laws and to defend any violation charges.  Our experienced Philadelphia heath care attorneys assist health care professionals in the areas of compliance, contract drafting, employment issues and litigation.