The Federal Anti-Kickback Statute (the "AKS"), enacted as part of The Medicaid and Medicare Patient Protection Act of 1987, and codified at 42 U.S.C. §1320a-7b, criminalizes certain conduct affecting reimbursable services under Medicare and Medicaid, and other federally-funded programs.
Specifically, the statute prohibits the offer, payment, solicitation or receipt of anything of value in return for patient referrals for services or goods covered, in whole or in part, by federal healthcare programs such asMedicare, Medicaid or TRICARE. At its core, the Anti-Kickback Statute prohibits bribes, payments or rewards (directly or indirectly) – or the solicitation or offer of such remuneration – in connection with practically every aspect of health care delivery when any portion of those goods or services are paid for with federal dollars.
Violations of the Anti-Kickback Statute prosecuted as crimes can result in a felony conviction for the offenders, fines of up to $25,000, and imprisonment for up to five years. In addition, AKS violations are explicitly defined as violations of the False Claims Act, and therefore they can be pursued in the civil context by Relators on behalf of the government.
As with the Stark Act, compliance with the provisions of the Anti-Kickback Statute is a condition of payment within Medicare, Medicaid, and other federally-funded programs. Anti-Kickback Statute violations can create liability under the False Claims Act when persons or entities submit or cause others to submit claims for payment to Medicare or Medicaid with knowledge that the underlying transactions were in violation of the Anti-Kickback Statute prohibitions.
Real World Examples of Recent False Claims Act Cases involving Anti-Kickback Statute Violations:
- 2011: Cardinal Health, Inc. paid $8 million to settle a whistleblower lawsuit claiming violations of the Federal Anti-Kickback Statute. One of the whistleblowers, a pharmacy owner, alleged that Cardinal Health violated the Anti-Kickback Statute by paying him $440,000 to purchase prescription drugs from Cardinal Health. The whistleblowers received $760,000 as a result of the settlement.
- 2009: Healthways, Inc. paid $40 million to resolve a whistleblower case in which it was alleged that Healthways' subsidiary paid kickbacks to more than 200 physicians for patient referrals. The whistleblower, a former employee of Healthways' subsidiary, received more than $7 million.
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