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Federal and State Anti-Kickback Law (AKS) (Part 1)

by Ann Coleman

Introduction to Anti-Kickback Statute

If you are a physician, or work as an administrator in a physician’s office or hospital, you are probably, at least generally, familiar with the Medicare-Medicaid Anti-Kickback Statute (“AKS”).  Although the AKS is but one of the federal and/or state laws prosecutors may use in the war against healthcare fraud and improper influence that are detrimental to patients and payors, it is, by far, the most widely known and the most basic in the prevention of payments for referrals.

Boiled down to the basic elements, the AKS provides criminal penalties, classified as a felony, punishable of up to five years in prison and fines of up to $25,000.00 for any individual or entity that knowingly and willingly solicits, offers, pays, or receives remuneration in order to induce any business that is reimbursable under the federal healthcare programs.  Many states have also enacted a version of the AKS, which usually mirrors the language of the federal statute. 

Because it was evident in the early days of the AKS (mid-1980s) that it could be interpreted by the courts very broadly, and therefore criminalize transactions that were possibly meant to compensate physicians for professional services, leaders in the healthcare industry successfully influenced Congress to establish certain “Safe Harbor regulations”.  These Safe Harbors set aside certain transactions that, while otherwise could influence referrals, are immune from prosecution. 

The Department of Health and Human Services’ Office of Inspector General (“OIG”) oversees the AKS by providing “Advisory Opinions” in response to inquiries presented by individuals and entities regarding hypothetical or actual situations that may not be clearly addressed by the AKS.  The OIG also publishes fraud alerts, bulletins and Safe Harbor explanations and issue compliance guidance, all in an effort to clarify the AKS.  The OIG, also acting as “enforcer”, issues civil monetary penalties and has the power to exclude individuals and entities from participation in federal programs (Medicare-Medicaid).  The OIG’s website is the source for all OIG publications, an exclusions database (you are required to check it to make sure you are not hiring someone excluded from participation – more on that later), the latest enforcement actions taken, and a variety of other related news and updates.  I suggest making it part of your weekly read. 

Over the next several posts, I will delve into the AKS, dissecting the Safe Harbors, interpreting Advisory Opinions, and explaining fraud alerts, all in an effort to further clarify an otherwise murky sea of seemingly contradictory and confusing information. 

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