Anti-kickback and Stark Anti Self-Referral laws are crucial to the enforcement of sound medical practices in the United States. This is because they not only are important regulatory tools but also they re-enforce the idea that decisions regarding medical care should be made on a medical basis and not on a business basis. This principle has become ingrained in the the way medical charges are supposed to be issued and how medical providers are supposed to act. Despite many complaints about how complicated these laws can be, doctors, hospitals, laboratories, and research organizations all understand the basic premise, which is that they are supposed to make medical decisions based on medicine. They are not supposed to be making medical decisions influenced directly by business decisions.
These laws specifically say that illegal remuneration does not have to be in the form of cash. There have been successful anti-kickback cases and successful Stark law cases, which involve such illegal remuneration as sharing labor costs and marketing incentives. It may seem obvious, but with defense lawyers constantly on the prowl for a way to undermine liability, the idea that remuneration could be considered to be such a wide ranging set of potential payments under laws like this would not be easy to establish without these statutes. To better prepare for your claim and understand how kickback and Stark laws could impact your case, contact an established whistleblower attorney.
Difference Between Anti-Kickback and Stark Anti-Delf Referral Law
Another important factor of the statutes, and probably the most important factor with respect to False Claims Act, is that both the Anti-Kickback Statute and the Stark Law state that a violation of either one of them is also a violation of the False Claims Act. A kickback violation or a Stark law self-referral issue goes a long way to establishing a strong False Claims Act case as well.
The Anti-Kickback statute is slightly broader in that it applies to remuneration to influence any decision to provide healthcare under a government program. The Stark Law applies to physician referrals. A self-referral would be illegal. Both of these laws are criminal statutes and carry criminal penalties and can be used for criminal enforcement by the government.
The government may decide to take facts as submitted by an individual under a civil False Claims Act case and prosecute people criminally, but that is not the decision of the Relator or Relator’s counsel in filing one of these cases. Violation of this False Claims Act carry great weight including civil penalties and treble damages, so False Claims Act Liability is usually taken seriously by the medical community.
What Impacts Civil Damages Related to False Claims Cases?
Another reason that civil damages may be taken very seriously by the medical community is that there is no provision for damages to be mitigated as in some other types of fraud. A physician or hospital that provides services pursuant to a kickback is liable, regardless of whether they provided the services involved in the kickback. The defendant gets no set off under most case law for having provided any such services and is liable for the full amount charged to the government.
This is generally because the government is a kind of third-party beneficiary. Nobody from the government sits in the room with a patient and therefore the government’s only role is to pay for these services, and is considered to be harmed if any charge is tainted by an illegal incentive.
How is Stark Law Related to the False Claims Act?
As a result the Stark Law and the Anti-Kickback Statue are powerful tools to use in a False Claims Act case. They are complicated because health care itself is complicated. There are many so called “safe harbors” in the law to allow for certain types of referrals and payments to be made which have been deemed by the Department Health Care Services and by Congress as being normal payments. Still, running afoul of either of these laws does carry great weight both individually and by leading to liability under the False Claims Act.
Kickbacks have created liability in many different forms including the failure to collect co-payments in drug cases or in medical service cases. The co-payment is an obligation by the insured person to some small portion of a service, pharmaceutical, or durable medical equipment. When the charge to Medicare or the government is so great that not collecting the co-payment does not affect the provider very much, it can be easy for them simply not to collect the co-payments. However, that is considered can be considered a kickback for a patient and establish liabilities.
There are of course many other kinds of kickbacks. Financial agreements on referrals or on providing marketing services deserve strict scrutiny to determine if a kickback is involved. Accepting a kickback makes someone liable under the anti-kickback statute, and providing the kickback also makes someone liable. If a major corporation is providing a healthcare provider with incentives to use their durable medical equipment, that would be a kickback to the provider.
If the so-called one-purpose test is passed, it can be considered a kickback even if the payment has other uses. It is important to keep track of the business relationships. It is important to understand what these business relationships really are. Making the correct determination and examining those relationships closely may expose an important fraud case to file under the False Claims Act.