Under certain circumstances, financial relationships between referring physicians and other health care providers are prohibited by the federal Anti-Kickback Statute and the Stark Law. Compliance with the federal Anti-Kickback Statute and Stark Law is a condition of payment under federal health care programs, such as Medicare, Medicaid and Tricare. In other words, claims tainted by violations of the federal Anti-Kickback Statute and Stark Law are not reimbursable by Medicare and other federal health care programs. Therefore, it violates the federal False Claims Act to submit and received payment for claims tainted by violations federal Anti-Kickback Statute and Stark Law.
Health care services provided in violation of the Anti-Kickback Law or Stark Law raise a serious concern. Government health care programs such as Medicare will not pay claims tainted by a violation of the Anti-Kickback Law or Stark Law. The reason being that when the referring physician has a financial interest in the company he or she refers their patients to, that health care service provider or the services ordered may not be in the best interest of the patient for treating his or her health condition.
The Anti-Kickback Statute
The Anti-Kickback Statute
Many whistleblower lawsuits have been brought under the federal False Claims Act alleging health care providers defrauded the federal government by submitting and receiving payment for Medicare and Medicaid claims tainted by a federal Anti-Kickback Statute violation. This federal Anti-Kickback law has been one of the federal government’s primary tools in combating fraud and abuse in the government health care system.
The federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b)(2)(B), prohibits offering to pay or paying any remuneration to any person to induce such person to purchase any good service, or item for which payment may be made in whole or in part under a Federal healthcare program. Pursuant to the federal Anti-Kickback Law, it is unlawful to knowingly offer or pay any remuneration in cash or in kind in exchange for the referral of any product for which payment is sought from any federally-funded health care program, including Medicare, Medicaid and Tricare. In order to ensure compliance, every federally-funded health care program requires every provider or supplier to ensure compliance with the provisions of the federal Anti-Kickback Law and other federal laws governing the provision of health care services in the United States. Therefore, pursuant to the federal Anti-Kickback Statute, claims submitted to government health care programs for payment that include items or services resulting from a violation of the law constitute a false or fraudulent clam for the purposes of the federal False Claims Act.
For example, it may be a violation of the federal False Claims Act if a doctor pays or receives kickbacks (i.e. compensation) for the referral of Medicare treatments. Because Medicare will not pay claims resulting from a violation the Anti-Kickback Law, submitting such claims constitutes a violation of the federal False Claims Act. This would constitute Medicare fraud.
The federal Anti-Kickback Statute penalties are severe. A violation of the federal Anti-Kickback Law constitutes a felony punishable by a maximum fine of $25,000, imprisonment up to five years, or both. Any party convicted under the federal Anti-Kickback Statute must be excluded from federal health care programs for a term of at least five years.
The federal Anti-Kickback Law was amended in March 2010 as part of the Patient Protection and Affordable Care Act (PPACA), which clarified that all claims resulting from a violation of the federal Anti-Kickback Statute are also a violation of the federal False Claims Act. 42 U.S.C. § 1320a-7(b)(g). The PPACA also amended the Social Security Act’s “intent requirement” to make clear that violations of its anti-kickback provisions, like violations of the FCA, may occur even if an individual does “not have actual knowledge” or “specific intent to commit a violation.”
The federal Anti-Kickback Statute has safe harbor provisions which provide no liability for a financial relationship that would otherwise result in a federal Anti-Kickback Law violation.
However, the federal Anti-Kickback Statute and Stark Law are still violated even if the services provided were reasonable or necessary to treat the patient’s health condition. To provide an example, if a physician is receiving kickbacks from another health care provider in order to induce his or her referrals of Medicare patients for health care services, this would violate the Anti-Kickback Statute. Because of the federal Anti-Kickback Law violation, Medicare will not pay for the services performed for patients referred in violation of the Anti-Kickback Statute. Therefore, when these services are billed to Medicare the claims would violate the federal False Claims Act, even if the medical procedures performed were reasonable and necessary. The analysis could be applied to services provided in violation of the Stark Law.
If you have information about an Anti-Kickback Law violation and would like to speak with an attorney, please contact us for a confidential discussion.
The Stark Law
The Stark Law
The Stark Law, 42 U.S.C. § 1395nn, prohibits physicians from referring federal health care beneficiaries for certain “designated health services” to entities with which the physician or his or her family members have a nonexempt financial relationship. When a designated health services is provided in violation of the Stark Law, an entity may not submit that claim for payment to federal health care programs.
In other words, the Stark Law prohibits physician self-referrals – referring patients to certain health care provides that the physician has a financial stake. Medicare and Medicaid will not pay claims resulting from a violation of the Stark Law. Therefore, claims tainted by the Stark Law that are submitted to and paid by government health care programs violate the federal False Claims Act.
No Fees Without Recovery
Ross M. Wolfe and the Weiser Law Firm litigate whistleblower lawsuits on a contingent fee basis, so whistleblowers do not pay attorneys’ fees or court costs unless there is a recovery.
Please contact Ross M. Wolfe if you would like to speak with a whistleblower attorney for more information about the whistleblower process, the federal Anti-Kickback Statute, the Stark Law or to schedule a meeting to discuss your potential case.