The Anti-Kickback Statute provides that doctors, hospitals, and other healthcare providers can’t induce medical providers to refer patients based on illegal inducements and incentives. Generally, payments of cash, payment above fair market value, and payments for services such as speeches that are never delivered or are worthless are considered kickbacks.
If the kickback enables a doctor or health provider to bill Medicare or another healthcare agency for services or products, then the bill may be considered a false or fraudulent bill. Bills that are false or fraudulent may be subject to whistleblower complaints under the False Claims Act. For example, if a sales representative asserts that a drug company paid doctors to induce the doctors to prescribe their medications, then the sales rep may have a valid False Claims Act case because of the kickbacks. The sales rep may be entitled to a percentage of any sums the drug company is ordered to pay for the improper Medicare payments and for any statutory damages.
Not every relationship between doctors and hospitals or physicians and drug companies is considered a kickback. The AKS allows for safe harbors – essentially agreements that will not be considered kickbacks.
Generally, safe harbor protection requires that the financial agreement be placed in writing, be for fair market value, and that the agreement is not based on the amount or the quantity of the referrals. The full list of safe harbors can be found in 42 CFR § 1001.952. Examples include:
- Referrals made as part of a professional services agreement
- Payments to lease office equipment and office space
- Some payments to recruit other physicians and medical staff
- Properly drafted management contracts
- Some approve discounts
- The sale of a medical practice
The safe harbors have detailed requirements. Doctors, health providers, and health companies that bill Medicare and other healthcare agencies can be liable under the False Claims Act if they fail to comply with any of the requirements.
The California Law Offices of Stephen A. Danz and Associates has the experience and resources to help whistleblowers file a properly drafted False Claims Act case. Violations of the Anti-Kickback Statue that involve federal healthcare agencies may qualify as a violation of the False Claims Act. To learn if you have a viable whistleblower claim, call us at online contact form to schedule an appointment. Se habla espanol.or fill out our