What Is the “Anti-Kickback” Statute?

Physicians and health care other providers face numerous prohibitions against self-referrals and against making referrals in exchange for remuneration.  The federal Anti-Kickback Statute is a criminal law that prohibits the knowing and willful payment of remuneration in exchange for referrals of services payable by federal health programs, which include health care services for Medicare or Medicaid patients.  The law prohibits any person from offering, paying, soliciting, or receiving anything of value—whether it is money or something less obvious, such as free product, tickets, hotel vouchers, speaking fees, or lowered rent payments.  This law creates restrictions on virtually all business dealings involving physicians, including dealings with landlords, drug companies, device manufacturers, physical therapy clinics, hospitals, or other physicians.

Anti-kickback violations must be knowing and willful for criminal liability to attach; successful prosecution can lead to fines of up to $25,000 per violation and prison time.  Further, any doctor who submits false Medicare or Medicaid claims, whether knowingly or with reckless disregard for their truth or falsity, also faces civil liability under the False Claims Act.

The parameters of anti-kickback law include specific carve-outs that allow medical providers to enter mutually-beneficial transactions with impunity.  These carve-outs are known as “safe harbors” and are detailed and complex. To avoid potential violations, health care providers should review all transactions carefully with the aid of experienced counsel.