Important Differences between the Anti-Kickback Statute and Stark Law

Last Updated: 2023-03-04

What works in other industries typically does not work in the healthcare industry. It is critical to understand that while it is more than common to pay for business on a quid-pro-quo basis in many other industries, healthcare laws strictly forbid direct compensation for patient referrals.

The Anti-Kickback Statute and the Stark Law are the two federal statutes that are primarily responsible for this prohibition on compensation for referrals. While both statutes are similar in nature, the notable differences between the statutes are outlined below.

Put our highly experienced team on your side

Dr. Nick Oberheiden

Founder

Attorney-at-Law

John W. Sellers

Former Senior Trial Attorney
U.S. Department of Justice

Local Counsel

Joanne Fine DeLena

Former Assistant U.S. Attorney

Local Counsel

Joe Brown

Former U.S. Attorney & Former District Attorney

Local Trial & Defense Counsel

Amanda Marshall

Former U.S. Attorney

Local Counsel

Aaron L. Wiley

Former Federal Prosecutor

Local Counsel

Roger Bach

Former Special Agent (OIG)

Michael Koslow

Former Supervisory Special Agent (FBI)

Chris Quick

Former Special Agent (FBI & IRS-CI)

Kevin M. Sheridan

Former Special Agent (FBI)

Ray Yuen

Former Supervisory Special Agent (FBI)

Dennis A. Wichern

Former Special Agent-in-Charge (DEA)

• What Is the Anti-Kickback Statute? The Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)) bans anyone from soliciting or receiving remuneration of any kind in exchange for referring a patient for services for which a federal healthcare program pays or for purchasing an item or service for which a federal healthcare program pays.
• What Is the Stark Law? The Stark Law (42 U.S.C. § 1395nn) limits a physician’s ability to refer Medicare/Medicaid patients to a health service provider in which the referring physician (or their immediate family member) has a financial interest and prohibits health service providers from billing Medicare/Medicaid for medical services performed pursuant to a barred referral.

Important Differences

• Applicable Federal Healthcare Programs: The Stark Law is limited to Medicare and Medicaid; the federal Anti-Kickback Statute applies to all government-funded healthcare programs, including TRICARE and patients under the Department of Labor programs.
• Source of Prohibited Referrals: Whereas the Stark Law is only concerned with referrals from physicians, the Anti-Kickback Statute applies to referrals from anyone. That said, however, anyone can violate the federal Anti-Kickback Statute by illegally referring patients, but only physicians can violate Stark Law’s self-referral prohibitions.
• Type of Services Involved: The Anti-Kickback Statute covers all services or items for which payment is sought from a government healthcare program. In contrast, the Stark Law applies only to an express list of “Designated Health Services” (DHS) composed of: (1) clinical laboratory services; (2) physical therapy services; (3) occupational therapy services; (4) outpatient speech-language pathology services; (5) radiology and certain other imaging services; (6) radiation therapy services and supplies; (7) durable medical equipment and supplies; (8) parenteral and enteral nutrients, equipment, and supplies; (9) prosthetics, orthotics, and prosthetic devices and supplies; (10) home health services; (11) outpatient prescription drugs; and (12) inpatient and outpatient hospital services.
• Exclusions: The Anti-Kickback Statute specifies certain optional safe harbors, whereas the Stark Law expressly excludes a number of “exceptions” from the purview of the law.
• Intent Required to Violate Act: Prosecutors must demonstrate that a person “knowingly and willfully” violated the law in order to prove a violation of the Anti-Kickback Statute. The Stark Law holds a physician/DHS liable for reimbursing the government for any monies received in violation of the law, but it requires a person to have knowingly violated the law in order to receive a civil monetary penalty.
• Penalties for Violation: The penalties for violation of the Stark Law are limited to civil penalties, such as denial of payment, fines, reimbursement, and False Claims Act liability. In addition to civil sanctions, the Anti-Kickback Statute also provides for criminal punishment. A violation of the Anti-Kickback Statute constitutes a federal felony punishable by up to 5 years in prison and up to a $25,000 fine for each violation.

About Our Practice

Oberheiden, P.C. is a team of former healthcare prosecutors and experienced trial attorneys who handle healthcare and business litigation throughout the United States. We advise healthcare providers, business owners, and executives on all complex issues of healthcare law.

Additionally, our healthcare fraud defense attorneys assist service providers and businesses under investigation for alleged Qui Tam Lawsuit, Stark Law, False Claims Act, or Anti-Kickback violations.

Free Consultation

If you need assistance with a Stark Law or Anti-Kickback Statute investigation, you should contact the experienced attorneys at Oberheiden, P.C.. Get a free and confidential consultation and benefit from talking to former federal and state prosecutors and experienced litigators.

Free Consultation

If you need assistance with a Stark Law or Anti-Kickback Statute investigation, you should contact the experienced attorneys at Oberheiden, P.C.. Get a free and confidential consultation and benefit from talking to former federal and state prosecutors and experienced litigators.

Nick Oberheiden

Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.