Paying for Referrals: A Danger to Your Freedom

The session will provide an overview of the Anti-Kickback Statute (AKS) and review what it prohibits, as well as review the Statute’s available safe harbors. It will also show how violation of the AKS can raise FCA concerns, and it will provide an assessment of enforcement activities, showing how participants may be at risk. In addition, the session will review recent cases and show how they potentially impact participants.

We will provide an in-depth review of the AKS, focusing on what is prohibited under the Act and what the exceptions are. We will also review the case law, particularly the early case law that sets the stage and basis for how the courts interpret the law. Since one of the exceptions to enforcement under the Act is regulations promulgated by the Secretary, the “safe harbors,” payment practices that will not be subject to criminal prosecution and that will not provide a basis for civil monetary penalties or exclusion from the Medicare or Medicaid programs, we will examine these safe harbors, particularly those more frequently used, to show how protection from enforcement can be achieved. Specifically, we will review the investment, space and equipment rental, personal services/management contracts, and physician recruitment safe harbors.

In addition, we will discuss OIG’s Joint Venture Advisory Opinion, where a hospital expands into a related service line by contracting with an existing provider of that service. The OIG has significant problems with such an arrangement. We will also discuss the recent advisory opinion by the OIG regarding Physician-Owned Entities. OIG views PODs as inherently suspect under the AKS because the opportunity for a referring physician to earn a profit, including through an investment in an entity for which he or she generates business, could constitute illegal remuneration under the AKS.

Finally, the webinar will review various cases to show how easy it is to run afoul of the Statute, and how the courts view compliance with it. 

• How many activities that are common in industries are a crime under federal healthcare fraud and abuse laws
• The potential for the government to use the Anti-Kickback Statute as one of the prime methods for enforcing the federal fraud and abuse laws
• How, along with Stark II (the federal physician anti-referral law), the Anti-Kickback Statute can be and is being used as the basis for an action brought under the Federal False Claims Act
• The elements of the Anti-Kickback Statute, along with the various exceptions and safe harbors that you can rely on for protection
• How, under recently enacted health care laws, enforcement and health care fraud task forces have been greatly enhanced
• How the Affordable Care Act (better known as Obamacare), the government has greatly enhanced enforcement resources
• How the courts have construed the reach of the Anti-Kickback Statute
• How recent cases have found that the “responsible corporate officer doctrine” allows the government to hold hospital CEOs and others directly responsible for the fraud
• How to protect yourself and your organization

• The federal Anti-Kickback Statute
• Exceptions to the Anti-Kickback Statute
• Scope of judicial interpretation of the Anti-Kickback Statute
• The Medicare and Medicaid Patient and Program Protection Act
• The Anti-Kickback Safe Harbors
• OIG Special Advisory Bulletins and Fraud Alerts
• Recent case law regarding paying for referrals
• How the Affordable Care Act affects the scope of the Anti-Kickback Statute

• Hospitals and Hospital executives, particularly CEOs, COOs, CFOs, CNOs, and CMOs
• Nursing homes and nursing home executives
• Physicians and physician practice managers
• Durable medical equipment suppliers and their executives
• Physical therapy practices and practice managers
• Home healthcare companies and their executives
• Other non-physician practices and
• Other healthcare provider executives