We’ve been discussing the issue of fraud in our last several posts, particularly the issue of intent in health care fraud cases. We left off discussing the Anti-Kickback Statute, and noted that when prosecutors are not able to provide sufficient evidence to satisfy the intent requirement under the statute, they are not able to obtain a fraud conviction.
One important point to make about the Anti-Kickback Statute is that there are certain safe harbor rules that can protect payments and business practices that would ordinarily be covered by Anti-Kickback Statute. Whenever a safe harbor applies, it is important for a defendant to present sufficient evidence to support the safe harbor. These can include, among other scenarios: payments constituting a return on investment interests; payments under lease agreements; payments for personal services and management contracts; payments stemming from the sale of a practice; and payments for certain referral services.
In terms of safe harbors under the Anti-Kickback statute, the latter is a particularly important one to understand. Although the statute does prohibit arrangements which induce or reward patient referrals or the drumming up of business involving federal health care programs, it does not exclude all referrals. Certain requirements must be met, though, to qualify for the safe harbor.
These requirements are:
- The referral service must not exclude the participation of individuals or entities who meet the conditions for participation.
- Payments for participation are equal for all participants and are based strictly on operating costs.
- The referral service must not involve any requirements as to how participants treat their patients, other than perhaps requiring participants to charge referred and non-referred patients equally or requiring that services be provided at a reduced rate or at no charge.
- The referral service must make the proper disclosures to participants (these disclosures are discussed in the link provided above).
Whether a health care provider is facing charges under the Anti-kickback statute, the False Claims Act, or some other federal law, it is important to work with an experienced criminal defense attorney to make sure they build the strongest case possible. Fraud cases can be particularly challenging for defendants not familiar with the criminal process and the relevant law, but a seasoned attorney can help make sure that a defendant’s rights are protected.