Introduction
This article is about the federal “Stark” law and the federal “Anti-Kickback” law. This article uses the legislation and brief cases to summarize the two laws. This particular article focuses on the potential liability of a physician under these laws. The article is designed to provide information to physicians and hospitals on how to comply with these laws in the context of referring patients. This article is derived solely from original public sources, in particular relevant case law and legislation.
Federal “Stark” Law
The federal Stark Law refers only to doctors and only to kickbacks that a doctor or a member of the doctor’s family receives for referring Medicare and Medicaid patients to laboratories in which the doctor or the doctor’s family has a financial interest. . 42 USC 1395 nos. The Stark Law was later amended to also prohibit physician referrals to other health care companies in which the physician may have a financial interest. 42 USC 1395nn(b)(1). The Stark Law is a strict liability statute. ID.
The Stark Law expressly only applies to physicians and does not apply to providers of medical equipment, knowledge centers or marketing services or any other type of entity. Therefore, such services cannot be held liable under the Stark Law and the Stark Law does not apply to the issue at hand here. ID.
Federal Anti-Bribery Statute
However, an entity may be liable under the federal Anti-Bribery statute for certain acts, listed below. Federal Anti-Kickback was designed to correct the improper award of subcontracts as well as the corruption of officers, employees, or agents of prime contractors who are otherwise involved in the award of subcontracts involving the use of government funds. 41 USC §§ 51, 52, 54; Howard v. US, 345 F.2d 126 (1st Cir. 1965.) The Anti-Kickback statute applies more broadly to financial relationships with any entity that is a source of patient referrals to the other party to the financial relationship. Id. The Anti-Kickback statute extends to both “recommend” and refer, however, no definition of the word “refer” is provided in the statute. ID.
Additionally, a key distinction between the federal Stark and Anti-Kickback statutes is that where the Stark Law is a strict liability statute, the Anti-Kickback statute requires proof of wrongful intent. ID.
Under the Anti-Kickback statute, it is illegal to knowingly and knowingly solicit or receive any remuneration “in exchange for referring an individual to another person for the supply of any item or service for which payment may be made in whole or in part under a Federal Health Care Program 42 USC § 1320a-7b(b)(1)(A.)
Cases under the anti-bribery statute
The jurisprudence is consistent that the Anti-Kickback statute regulates only references where federal funds are involved, such as Medicare and Medicaid. United States v. Cancer Treatment Centers of American, not reported in F.Supp.2d, 2005 WL 2035567 (ND Ill.); USA ex rel. porales c. St. Margaret’s Hosp., 243 F.Supp. 843, 848 (CD Ill. 2003). Therefore, if it is not a federally funded program, the Anti-Kickback statute does not come into play in this scenario. ID.
Required Intent and Required Federal Contracts for Liability Under the Anti-Bribery Statute
If any federally funded program, such as Medicare or Medicaid, is involved in the scenario, the Anti-Kickback statute applies, although the involvement of a federally funded program does not necessarily result in a violation of the Anti-Kickback statute. . Id. The Anti-Kickback statute focuses on the circumstances surrounding the referrals themselves. Id. The test is whether the arrangement is designed to improperly obtain or reward favorable treatment for the broker through “kickbacks.” ID.
The term “bribery” has been defined by a court in an Anti-Bribery case to situations involving a percentage of a payment paid to an entity to provide assistance, by someone in a position to open or control a source of income and is not limited to the return of funds to a previous holder. United States v. Hancock, 604 F.2d 999 (7th Cir. Ind. 1979.)
However, the Anti-Kickback statute does not prohibit making or receiving “kickback” payments, except in connection with contracts with the federal government on a cost-plus-fixed-fee or other reimbursable cost basis. Payments made in connection with a non-Federal fixed fee plus cost contract are not prohibited by statute. United States v. Webber, 270 F.Supp. 286 (D. Del. 1967.)
Therefore, if the arrangement in question does not involve contracts with the federal government on a cost-reimbursable basis, the Anti-Kickback statute does not apply. ID.
In addition, the statute does not prohibit bribery payments in connection with a non-federal contract or a federal fixed-fee contract. 41 USC § 51; United States v. Dobar, 223 F.Supp. 8 (MD Fla. 1963). Therefore, if the arrangement in question only involves federal fixed rate contracts with the federal government, it is not prohibited by the Anti-Kickback statute. ID.
Where no intent or purpose is shown to violate the Anti-Kickback Statute, there is no violation of the Anti-Kickback Statute. McDonnell v. Cardiothoracic & Vascular Surgical Associates, Inc., not reported in F.Supp.2d, 2004 WL 3733402 (SD Ohio 2004). Therefore, if there is no proof of intent to violate the Anti-Kickback statute, there is no criminal violation under the statute.
conclusion
As stated above, if no payment is made to someone who is in a position to “open or control a source of income,” the Anti-Bribery statute is not violated. Id. Thus, if the scenario in question does not involve a payment to “someone in a position to open or control a source of income,” there is no violation of the statute. Id. There is also no violation if no federal funds are involved. Id. And there is no violation without a finding of intent to violate the statute. ID.
This article does not copy or paste any text from any private source. All sources are public court cases or public legislation.