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Anti-Kickback Attorney

Anti-Kickback Statute Explained by Experienced Anti-Kickback Lawyers

Lynette Byrd
Attorney Lynette Byrd
Anti-Kickback Team Lead
Former DOJ Attorney envelope iconContact Lynette directly
Kevin M. Sheridan
Kevin M. Sheridan
Anti-Kickback Consultant
Former FBI Special Agent
Wade McFaul
Wade McFaul
Anti-Kickback Consultant
Former HHS-OIG Assistant Special Agent-in-Charge

The Federal Anti-Kickback Statute makes it a felony to knowingly and willfully offer, pay, solicit, or receive payment, directly or indirectly, in order to gain business reimbursable by any federal health care program, cf. 42 U.S.C. § 1320a-7b(b).

Violations of the Anti-Kickback Statute are one of the most common claims in investigations, physician disciplinary proceedings, and board actions. Violations require two elements: compensation between parties and illegal intent involving a federally funded healthcare program.

What the Government Has To Prove

The government must prove that the payment between parties occurred and that there was bad intent for the exchange. Intent to violate the law regarding a federal healthcare program is not required.

(1) Remuneration Explained
Remuneration (payment) is exchanging anything of value. The Anti-Kickback law goes into effect once remuneration like gifts, rebates, durable medical equipment, cash, donations, or consulting fees are on offer between parties. Broad in scope, the statute may be violated if only one purpose of a payment is to induce referrals. U.S. v. Greber, 760 F.2d 68 (3rd Cir. 1985).

Any form of payment or financial benefit to a physician is “remuneration” and can lead to enforcement of the Anti-Kickback Statute. Therefore, it is critical to disprove the existence of bad intent behind payments.

(2) Intent Requirement
An illegal intent to ask for or give referrals, or to purchase, lease, order, arrange, or recommend any good, facility, or service must occur with remuneration in order to violate the statute when a federal healthcare program could pay for them.

Under the Patient Protection and Affordable Care Act (PPACA), the government is not required to show that a defendant knew the behavior was illegal. (United States v. Mathur, 2012 WL 4742833 (D. Nev. 2012)). Therefore, a person does not need real knowledge of the Anti-Kickback Statute, nor have specific intent, in order to commit a violation of the law. (42 U.S.C. 1320a-7b(h)). The statute lowers the standard making it easier for the government to prove illegal intent. A judge or jury will determine if intent is clear. (U.S. v. Bradford Regional Medical Center, Civil No. 04-186 Erie, 2013 U.S. Dist. LEXIS 141835 (W.D. Penn. Sept. 30, 2013)).

It is imperative that individuals show clear and good intent. Any form of knowledge and awareness of wrongdoing can be held against them.

Civil or Criminal Charges?

One of the first things clients want to know is if the government case against them is civil or criminal. Is the government seeking monetary remedies or criminal indictments and imprisonment? Healthcare fraud statutes provide for both, making the question of civil versus criminal quite important. As of September 2022, the Medicare Fraud Task Force reported 2,688 criminal actions and 3,483 indictments accounting for $4.7 billion in investigative receivables.

How can we tell? When first talking to our clients and hearing their side of the story, we develop a sense of how the case may proceed. Years of experience let us to see details and nuances that do not appear relevant to most people. Close attention to client notification, the government agency making contact, and which official is in charge tells a lot. The involvement of a prosecutor or a federal agency does not mean the case is a criminal matter.

Call us today to discuss your case with our anti-kickback law attorneys. All initial consultations are free and confidential. We want you to gain relief and to move on with your life. Let us handle your case.

Contact Oberheiden, P.C. online today.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd
Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester
Brian J. Kuester

Former U.S. Attorney

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney

Local Counsel

John W. Sellers
John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara
Linda Julin McNamara

Federal Appeals Attorney

Aaron L. Wiley
Aaron L. Wiley

Former DOJ attorney

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (DOJ)

Chris Quick
Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow
Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

Who is Under Investigation?

Because the Anti-Kickback statute applies to professional health care providers, (e.g. physicians, nurse practitioners, nurses, physician assistants), as well as non-licensed individuals, (e.g. healthcare business owners), everyone involved in healthcare is subject to anti-kickback regulations. Under particular scrutiny are service arrangements in the following:

Industries:

  • Laboratories
  • X-Ray, MRI, Imaging Centers
  • Surgery Centers
  • Physician Owned Companies
  • Physicians
  • Compound Pharmacies
  • Medical Device Companies

Recent Examples:

How Can I Avoid Government Scrutiny?

The best defense against anti-kickback charges is working with experienced counsel before entering negotiations. Each member of the Healthcare Practice Group at Oberheiden, P.C. has experience in handling a minimum of one hundred healthcare cases. We draft documents to meet state and federal inspection. Documents include marketing and service agreements, and ventures between physicians and healthcare service companies.

Under the Safe Harbor Statute, we develop business arrangements for providers within the limits of law. The Statute carves out certain behavior otherwise prohibited under the Anti-Kickback law. We show our clients how to meet Safe Harbor requirements. We demonstrate how to evaluate fair market value, avoid personal liability, set up corporate compliance programs, and how to show “good” vs. “bad” intent in ventures where the Anti-Kickback statute applies.

What Are Safe Harbors?

The Anti-Kickback law has several so-called Safe Harbors. Arrangements that may appear to violate the statute are exempt because the activity does not violate the spirit of the law. In other words, a Safe Harbor demonstrates “good intent”.

The U.S. Department of Health and Human Services (“HHS”) has a number of Safe Harbor regulations for lawful business deals between physicians and non-physicians. Strict compliance with Safe Harbor regulations provide comfort that an arrangement will not violate the law. Compliance within the law is optional and failure to fit within a safe harbor does not always make an arrangement illegal.

Recognized Safe Harbors Include:

  • Space rental agreements
  • Equipment rental contracts
  • Personal services and management contracts
  • Referral services
  • Compensation to legitimate employees
  • Group purchasing organizations
  • Price reductions offered to health plans
  • Ambulatory surgical centers
  • Electronic health records items and service

One of the most used safe harbor provisions allows physicians to invest in facilities where they refer their patients. Meeting various standards protects the return on this investment. One standard is that investors who can make or influence referrals to, or furnish items or services to the entity, can hold no more than 40 percent of the value of each class of investment interest. In addition, a requirement that not more than 40 percent of the entity’s gross revenues related to furnishing healthcare items and services can come from referrals or business generated by investors, see 42 C.F.R. § 1001.952(a)(2).

Another standard requires the terms on investment interests offered to a passive investor who can make or influence referrals to, furnish items or services to, or otherwise generate business for the entity, must be no different from the terms offered to other passive investors.

How Do I Protect Myself?

When you hire the attorneys and former government officials of Oberheiden, P.C., we bring expertise in three core areas: industry knowledge, government experience, and avoiding criminal charges. Our track record of successfully defending healthcare charges is clear.

Industry Knowledge. When under investigation, don’t waste time explaining your business. Expect your Anti-Kickback lawyers to be familiar with the industry and ready to plan a defense. Few healthcare violations are obvious, so expert knowledge can help prove that supposed misconduct was within the law.

Government Experience. We have government experience. The anti-kickback law attorneys and former government officials of Oberheiden, P.C. have proven healthcare and law enforcement experience. We have extensive knowledge and competence in handling serious healthcare matters. The difference between liability and human error is a fine line. It requires powerful negotiating skills and attention to detail.

Civil, not Criminal. We want to keep investigations civil, not criminal. Our attorneys persuade the government that if errors exist, they were accidental, not intentional and willful. Doing so is critical as in each fraud case the government has two choices. It can investigate to seek recoupments or indict and prosecute to seek imprisonment. The law provides for both.

Frequently Asked Questions

Why don’t we call ourselves the ‘best Anti-Kickback Defense lawyers’?

All lawyers are subject to strict ethical rules for communication with potential clients and the public. One of these rules prevents lawyers from making any statements that could be misleading. At Oberheiden, P.C., we believe that using the word “best” to describe an attorney’s services is subjective. For example, who decides what makes a lawyer the best anti-kickback defense lawyer? What criteria do they use? We believe that any lawyer who claims to be the “best” in a particular practice area is making an insupportable statement. Thus, we refrain from labeling ourselves the best anti-kickback law attorneys. At the same time, we are confident that our track record speaks for itself. We encourage those looking for the best anti-kickback defense to review our results. To learn more about Oberheiden, P.C., and to discuss how we can help you deal with allegations you currently face, give us a call to schedule a free case evaluation today.

What is at stake in a federal investigation into violations of the Anti-Kickback Statute?

The Anti-Kickback Statute (AKS) makes it illegal to knowingly and willfully “offer, pay, solicit, or receive any remuneration directly or indirectly to induce or reward patient referrals or the generation of business involving any item or service reimbursable by a Federal health care program.” Simply, the AKS bars payment for or receipt of valuables for referring a patient for services when a federal program pays. Prosecutors must prove that you knowingly or willingly entered into the illegal referral relationship. Criminal charges like jail time, penalties, and exclusion from federal programs follow if prosecutors win. A $50,000 fine plus additional fines of up to three times the amount of remuneration received may be imposed. There are, however, safe harbors that protect referral relationships otherwise falling under the AKS. The Anti-Kickback lawyers at Oberheiden, P.C. are highly experienced in defending healthcare providers and offer free consultations to all prospective clients.

What should I look for in an Anti-Kickback attorney?

When seeking a lawyer to represent you in a complex case, experience should be your primary concern. These cases require proven expertise in healthcare fraud laws as well as an in-depth knowledge of referral relationships in the industry. Such knowledge only comes by handling a number of these unique cases. While many lawyers boast about their experience, it’s important to determine the scope of that experience. You don’t want hire a lawyer who claims to have 40 years of experience, to later learn that 35 years of it was in an unrelated practice area. Oberheiden, P.C., is a dedicated team of healthcare fraud defense lawyers committed to representing physicians and others in the medical field. Several of our senior attorneys held high-ranking positions in the federal government. The positions covered both regulatory and law enforcement areas. Attorneys at Oberheiden, P.C. offer unique insight into how the government views anti-kickback cases and how to successfully defend against them.


Talk to an Experienced Anti-Kickback Attorney Today

If you are being investigated for healthcare fraud or anti-kickback statute violations call us today. Our fraud defense attorneys have the experience and expertise to defend you against any charges.

Our Track Record

  • Defense of nationally operating healthcare company against an investigation by the Department of Defense for alleged Tricare fraud.
    Result: No civil or criminal liability, case dismissed.
  • Defense of healthcare marketing company against an investigation by the Office of Inspector General for alleged False Claims Act and Medicare violations
    Result: No civil or criminal liability, case dismissed.
  • Defense of Medicare laboratory against investigations by the Department of Health and Human Services and the Office of Inspector General for alleged Healthcare Fraud.
    Result: No civil or criminal liability, case dismissed.
  • Defense of a healthcare services company against an investigation by the Office of Inspector General, the Department of Justice, and the Department of Health and Human Services for alleged False Claims Act and Stark Law violations
    Result: No civil or criminal liability, case dismissed.
  • Defense of Medicare laboratory against investigations by the Department of Health and Human Services and the Office of Inspector General for alleged Healthcare Fraud.
    Result: No civil or criminal liability, case dismissed.
  • Defense of a laboratory against an investigation by various branches of the federal government for alleged fraud.
    Result: No civil or criminal liability, case dismissed.
  • Defense of a physician owned entity against an investigation by the Department of Justice for alleged fraud.
    Result: No civil or criminal liability, case dismissed.
  • Defense of physician owned entity against an investigation by the Department of Health and Human Services for alleged Stark Law violations.
    Result: No civil or criminal liability, case dismissed.
  • Defense of a physician owned entity against an investigation by the Office of Inspector General for alleged False Claims Act violations.
    Result: No civil or criminal liability, case dismissed.
  • Defense of a physician owned entity against an investigation by various branches of the federal government for alleged False Claims Act, Stark Law, and Medicare violations.
    Result: No civil or criminal liability, case dismissed.
  • Defense of a physician owned entity against an investigation by the Office of Inspector General for alleged fraud.
    Result: No civil or criminal liability, case dismissed.
  • Defense of a physician owned entity against an investigation by the Department of Defense for alleged Tricare fraud.
    Result: No civil or criminal liability, case dismissed.
  • Defense of a physician owned entity against an investigation by the Department of Justice for alleged Medicare Fraud.
    Result: No civil or criminal liability, case dismissed.
  • Defense of physician owned entity against an investigation by the Department of Health and Human Services for alleged Stark Law violations.
    Result: No civil or criminal liability, case dismissed.
  • Defense of healthcare management organization against an investigation by the Office of Inspector General, the Department of Justice, and the Department of Health and Human Services for alleged Medicare Fraud.
    Result: No civil or criminal liability, case dismissed.
  • Defense of nationally operating laboratory against an investigation by the Office of Inspector General for alleged fraud.
    Result: No civil or criminal liability, case dismissed.
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