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anti-kickback

Federal and State Anti-Kickback Law (AKS) (Part 2)

As discussed in my first blog post of this series (link here), the federal Anti-Kickback Statute (“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. 

When the AKS was enacted in 1972 there were no exceptions or “safe harbors” for individuals or entities that were entering into certain business transactions that many influencers in the healthcare industry felt should be immune from the law.  However, it became evident less than 15 years after the statute was passed, that judicial interpretation would lead to some not-so-fair outcomes for those covered individuals and entities.  So between 1991 and 1999, the OIG promulgated several permissible acts (“safe harbors”) under the AKS that help take the sting out of the otherwise overly-broad legislation and allow for business transactions that do not have strong potential for corruption and abuse.  As a matter of fact, each year the OIG solicits recommendations from those effected by the AKS, for additional safe harbors or modifications those currently in existence. 

Currently there are 25 safe harbors to the AKS, which can be generally listed as follows:

  1. Investment interests
  2. Price reduction offered to health plans
  3. Space rental
  4. Practitioner recruitment
  5. Equipment rental
  6. Obstetrical malpractice insurance subsidies
  7. Personal services and management contracts
  8. Investment in group practices
  9. Sale of practice
  10. Cooperative hospital service organizations
  11. Referral services
  12. Ambulatory Surgical Centers
  13. Warranties
  14. Referral arrangements for specialty services
  15. Discounts
  16. Price reductions offered to eligible managed care organizations
  17. Employees
  18. Price reductions offered by contractors with substantial financial risk to managed care organizations
  19. Group Purchasing Organizations
  20. Ambulance replenishing
  21. Waiver of beneficiary coinsurance and deductible amounts
  22. Health centers
  23. Increased coverage, reduced cost-sharing amounts, or reduced premium amounts offered by health plans
  24. Electronic prescribing items and services
  25. Electronic health records items and services

Each one of these safe harbors, however, have very specific rules and many have been further interpreted in fraud alerts and Advisory Opinions by the OIG.  Therefore, each one deserves individual attention and dissection to insure total comprehension and adherence.  Some of the safe harbors are more complicated than others so in the following posts, I will address each to the extent necessary to explain them in simple, straightforward language. 

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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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