Healthcare fraud kickbacks are one form of kickback that is covered under anti-kickback statutes. The Stark Law prohibits certain forms of health care referrals and doctor referrals that could be considered health care kickbacks.
There is a barrage of incentives that can affect a person’s patient’s healthcare decisions but financial incentives should not be one of them. What is important for whistleblowers to understand about kickbacks, and about the world of False Claims Act law, is that there are regulations and laws that guide how to provide healthcare. Prohibitions against money used to influence health care decisions are among the strongest laws that exist in order to protect the system.
Proving kickback allegations does not require looking at the quality of medical care or arguing about medical opinions as to the necessity for that care. In that sense, these cases can be easier to prove, especially with the guidance whistleblower lawyer. If you wish to pursue a whistleblower case, contact an attorney today.
Legality of Kickbacks
Allegations of kickbacks in healthcare whistleblower cases are a question of the issue of financial incentives. Existing public policy prohibits using financial incentives to influence medical decisions as allowing such incentives will inexorably compromise care. Kickbacks are illegal.
There are two important laws, both of which confer virtually automatic liability under the False Claims Act if it can be shown that they have been violated: The anti- kickback statute and so-called Stark anti-self referral law.
Stark Anti-Self Referral Law
The Stark anti-self referral law has enumerable so called safe harbors which must be checked prior to bringing a case. Yet this law basically says that physicians with a financial relationship to a medical provider cannot refer designated health services (DHS) to such a provider essentially can not self-refer. Violating these provisions creates false claims under the Stark anti-self referral law.
The anti-kickback statute works similarly to the anti-referral law, but it is broader in the sense that it is not just related to the physician referrals, it prohibits illegal inducements by anyone to influence a medical decision. Cases that have held that if any part of any financial incentive was created to influence medical decision making it can be taken to be an illegal inducement under the anti-kickback statute.
The statute punishes both ends of the transaction. It is possible to hold both the receiver of such a bribe and the provider of the bribe liable under the anti-kickback statute. There has to be evidence of an inducement, but if there is an illegal inducement, and if there is no safe harbor under the law, it creates almost automatic liability under the False Claims Act as well.
Damages in such a case will be for the full amount charged to the government. This kind of case is usually, easier to prove than a case based on the medical necessity of a procedure. Of course, both kinds of fraud can occur at the same time and often do.
False Claims Act
The False Claims Act can work in tandem with these laws. Once a person violates the anti-kickback statute, it almost automatically confers a false claim. That means that the value charged the government for those services becomes a damage to the government even if the service is provided and even if the service is successful. The government has a right to have services provided to the third-party beneficiary as cleanly and as freely from such corrupting forces as illegal inducements to doctors as possible.
Damages in anti-kickback cases and Stark law violation cases are relatively easier to prove than in any other types of False Claims Act cases, and they are subject to the False Claims Act provisions of travel damages and civil fines. The anti-kickback statute itself is, in fact, a criminal action and the government can choose, if it so desires, to prosecute a case under the anti-kickback statute as an additional or separate matter.
If a person suspects a medical organization of indulging in kickbacks, this is an important area to bring up in the context of any whistleblower activity that a person may wish to report.
The government does have laws intended to divorce business from medical decision making. Medical care is now such a huge business, that those laws are needed more than ever.
A doctor’s recommendation as to what type of tests the patient needs, where they should get those tests conducted, what type of operation the patient needs, for example, all have huge implications in terms of the cost of caring for a patient. As a result, those decisions can quickly become business situations.
Value of an Attorney
It is vital that individuals have the freedom to make decisions, especially ones concerning their health and healthcare, without outside influence. That and the illegality of kickbacks are why kickback allegations in healthcare whistleblower cases are taken quite seriously. If you wish to pursue a whistleblower case, get in touch with a lawyer who can build a solid case for you.