The federal Anti-Kickback Statute ("AKS") prohibits the offer or payment, as well as the solicitation or receipt, of "any remuneration (including any kickbacks, bribe, or rebate)" in exchange for referrals. The prohibited activity is a two way street, with both the payer and the receiver equally culpable. What constitutes "any remuneration," however, is a gray area. While the statute provides that remuneration includes "any kickback, bribe or rebate," it does not define these terms. Further, there is a prohibition against remuneration "directly or indirectly, overtly or covertly, in cash or in kind."
Violation of the AKS is a felony with maximum fine of $25,000 and imprisonment up to five years, or both. Conviction results in automatic exclusion from federal health care programs. The Office of the Inspector General ("OIG") may initiate administrative proceedings based on a violation of the AKS and impose Civil Monetary Penalties ("CMPs") or exclude the offending party from federal health care programs.
The AKS includes both statutory exceptions and regulatory safe harbors. The safe harbors relevant to a discussion of marketing to Medicare/Medicaid beneficiaries include: (1) waiver of beneficiary coinsurance and deductibles by hospitals and selected other providers, or (2) increased coverage, reduced cost sharing or reduced premiums offered by health plans.
The Civil Monetary Penalties Law ("CMP Law") prohibits offering or transferring remuneration to a Medicare/Medicaid beneficiary that the person knows or should know is likely to induce selection of a particular provider, for which payment may be made in whole or part by Medicare or Medicaid. "Remuneration" is defined as any transfer of items or services for free or other than fair market value. Violation of this CMP may be penalized by a civil fine of $10,000.00 per item or service. In addition, the OIG may administratively exclude the party from federal health care programs.
This webinar will scrutinize these laws with a view to understanding these illegal inducements and changes made by Obamacare. The program will also examine guidance provided by the Department of Health and Human Services and the OIG. Finally, the program will look at potential risk areas.
The Medicare/Medicaid Fraud and Abuse Anti?Kickback Statute (the "Statute") is alive, still with us and as viable as ever. The Statute provides that the offer or payment, as well as the solicitation or receipt, of "any remuneration" in exchange for referrals of any good, facility, service, or item for which payment may be made in whole or in part under Medicare/Medicaid is prohibited. Likewise, the Civil Monetary Penalties Law prohibits offering or transferring remuneration to a Medicare/Medicaid beneficiary that the person knows or should know is likely to induce selection of a particular provider.