The Anti-Kickback Statute: Perspectives from a Whistleblower Lead Counsel and an Anti-Kickback Case Defendant

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 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.

Mr. Weinbaum was the target of a federal investigation and a defendant in two federal trials from 2003-2006 with Tenet Healthcare. In 2003 Alvarado Hospital Medical Center was raided by the FBI and he was subsequently indicted on 20 counts of violating the Anti-Kickback Statute. Over a span of three years, he was a co-defendant in two Federal trials along with the hospital and Tenet Healthcare; both ending in mistrials. A key lesson learned from the experience was that understanding the law, following corporate policy and procedure, and advice from counsel did not insulate from exposure to violating the Federal Anti-Kickback Statute. 

The presentation will cover his entire ordeal, with plenty of color, advice, and recommendations regarding documentation, verbal and written correspondence with physicians and attorneys, material disclosure of facts, involvement of the hospital governing board and medical staff leadership regarding financial arrangements, and whether the administrative team’s management style can create exposure for the entire organization.

• Provide attendees with an understanding of the Federal Anti-Kickback Statute.
• Provide a perspective of how the courts and the Inspector General’s (OIG) office view compliance with the AKS.
• Discuss recent enforcement actions taken by the OIG and its law enforcement partners.
• Show how the courts deal with violations of the AKS.

• The Anti-Kickback Statute
• The Anti-Kickback Safe Harbors
• OIG Advisory Opinions
• Enforcement Actions Taken by OIG and its law enforcement partners.
• Pertinent Caselaw
• Experience from a prior defendant

The AKS is currently the focus of law enforcement officials. The Statute provides that the offer or payment, as well as the solicitation or receipt, of “any remuneration” in exchange for referrals of any good, facility, service, or item for which payment may be made in whole or in part under Medicare/Medicaid, is prohibited.

Recent cases and/or enforcement actions involving the AKS, the violation of which has been held to be the basis of an action under the Federal False Claims Act, (“FCA”) raise serious concerns regarding compliance issues with hospitals, physician practices and other healthcare entities. Recoveries under the FCA are at an all-time high, and the percentage of actions involving healthcare organizations has been increasing at exponential rates.

Mr. Weinbaum is a former hospital CEO who was a defendant in an Anti-Kickback Statute prosecution. He will share his experiences.

This program is designed for healthcare executives, physicians, and other healthcare providers and their managers who participate in and receive remuneration from Medicare, Medicaid, and other federal healthcare programs such as TriCare. Several recent cases bring home the realization that many activities that are common in other industries are a crime under federal healthcare fraud and abuse laws.

Hospital executives, as well as physicians and/or other healthcare providers, should be very concerned about the potential for the government to use the Anti-Kickback Statute as one of the prime methods for enforcing federal fraud and abuse laws. Equally concerning, 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. In this webinar, you will learn about the elements of the Anti-Kickback Statute, along with the various exceptions and safe harbors that you can rely on for protection against enforcement under these laws, and learn from someone who has been thru the ordeal. This is important because healthcare fraud and abuse becoming the focus of these enforcement efforts.

• Hospital executives, particularly CEOs, COOs, CFOs, CNOs, and CMOs,
• Physicians,
• Physician practice managers, and
• Other healthcare provider executives.