Federal Anti-Kickback Lawyers
Our Health Law Group defends individuals charged and accused of giving or receiving kickbacks. If you are found to accept a kickback for referring any patient with federal health insurance, you may face both criminal and civil charges from the federal government.
What is a “Kickback?”
A “kickback” is the practice of referring a patient to another doctor or facility in exchange for some payment for the referral. It is important for all medical practices to know and understand what the law is regarding kickbacks.
When you receive a benefit for the referral, it creates an incentive to refer even if the patient does not need to be referred. Kickbacks drive up the cost of healthcare and create a system where patents can potentially get abused by medical professionals. The Anti Kickback Statute was passed to try and combat these “pay-for-referral” schemes to help reduce the cost of healthcare.
The Federal Anti-Kickback Statute - 42 USC § 1320a-7b(b)
The Anti-Kickback Statute and the False Claims Act are the two main claims brought against an individual that participates in a kickback scheme.
42 USC § 1320a-7b(b) outlines what a kickback is and that receiving a kickback is a felony.
The act of receiving a kickback is defined as “knowingly” receiving any money of any kind for a referral. The term “money” is extremely broad and covers payments, discounts, debt forgiveness, and most things that can be given a monetary value. If you are found to have received anything of value for giving patients referrals, you may be found guilty under this law.
You must be found to have committed this violation “knowingly,” which means that you must know you are getting some payment for your referral.
False Claims Act Violations - 18 U.S.C. § 287
If you are in violation of the Anti-Kickback Statute and submit a record to Medicare or Medicaid, you may also get charged under 18 U.S.C. § 287 the False Claims Acts.
18 U.S.C. § 287 imposes criminal sanctions on individuals who submit a false claim to Medicare or Medicaid. If you are submitting payments for patients that were referred with a kickback, there is a chance you will get prosecuted under the False Claims Act as well as civil penalties.
To prove the False Claim they need to prove you knowingly were submitting false reports to Medicare and Medicaid, which means you have to know you are in violation due to the kickbacks.
Penalties for Violating
- Anti-Kickback Violations. If you are found guilty of getting a kickback under this statute, you may face up to 5 years imprisonment as well as criminal monetary penalties up to $25,000.
- False Claims Act Violations. The False Claims Act comes with a sentence of up to 5 years of imprisonment and a fine for each false claim made.
In addition to criminal penalties, you may face civil penalties to reimburse the federal government for payments made on services involved in the kickback.
Detection and Investigation
Kickback schemes are detected and investigated in a variety of ways including reporting by patients or investigations performed by a government agency. Several government agencies investigate claims of fraud in the health care industry, including the Office of the Inspector General, the FBI and the divisions of Medicare and Medicaid.
- Whistleblowers. One of the largest ways that medical fraud is detected, including kickback schemes, is through whistleblowers. Whistleblowers are private citizens who file a lawsuit against a medical professional or group for fraud related activities. If there is a successful conviction of fraud the whistleblower may get between 15-30% of all money recovered by the federal government in the lawsuit.
- Red Flags. If there is a pattern in your referrals, you are making referrals for a high number of patients, or your patients are being referred to the same facility each time, it might raise a flag that will prompt an investigation. Agencies might then choose to investigate a practice to make sure that they are in compliance.
- Investigations. Kickback schemes are also found through investigations, sometimes even investigations trying to uncover some other type of fraud. For instance, if you have clients complaining about the bills, they are receiving or saying they are being referred when they shouldn’t be it might prompt an investigation. If you are under investigation for operating a kickback scheme, it is important to know your rights. During an investigation, you may retain an attorney and that attorney may be present for all questioning. If you are questioned by the authorities, you still maintain the right to remain silent as not to incriminate yourself, and you have the right to speak to an attorney.
- Government Audits. There is a potential for your practice to be audited by the federal government, and if they begin an audit against you, it would be helpful to have an experienced attorney to help you with the audit. If during the audit they find any problems in your records they may begin a full investigation where they may question patients and workers to find more evidence.
- Internal Audits. It is recommended that all financial arrangements be evaluated by legal counsel with experience in medical law to determine the risk of a violation of the Anti-Kickback Statute. An internal audit can also be done at the direction of legal counsel.
An attorney will help you through a government investigation. Just because you are under investigation, it does not mean that you have done anything wrong or that you will get charged but having an attorney from the onset of an investigation may help you defeat any charges for kickbacks.
What Are My Rights When I Am Being Audited?
If you are questioned by while you are being audited, you have the right not to incriminate yourself and you have the right to have an attorney present for questioning.
The auditors or investigators may begin questioning you to try and elicit incriminating information. An attorney will be able to help you assert your rights and guide you through the process.
What Happens After I Am Investigated?
After there is an investigation, the Attorney General’s Office will make a determination if there enough evidence to bring criminal charges against you under the Anti-Kickback Statute and the False Claims Act.
If these types of cases are brought against you, it is important to know that in addition to a civil case, these type of criminal charges may also be brought. That is why you should have a criminal defense attorney that understands the civil and criminal aspects of healthcare law, like an attorney at the Health Law Group.
What Happens After I am Charged?
After the charges are brought, there will be a grand jury hearing where the grand jury will decide if there is enough evidence to indict.
It is important to speak to an attorney to help you prepare for a grand jury hearing because there is a chance to get the charges dropped.
What Happens If I am Indicted?
After indictment, your attorney and the government may work towards a settlement on the case or move towards dismissal of the case. If there is no settlement or dismissal, your case will most likely end up in a trial.
Your attorney should work with you to review all of the evidence and prepare your best defense for trial. For all of your criminal convictions, you will also have the right to have a jury trial before a jury of your peers.
Importance of Defense
If you are found guilty of receiving a kickback you may have to serve a prison sentence for your acts. Also, there is a good chance that you or your practice may be liable for paying an extremely large penalty and restitution which may put you into bankruptcy.
It is important to get ahead of any charges by proactively ensuring you are not in violation of the Anti-Kickback Statute. Contact an attorney to review all of your contracts and practices to make sure you are in compliance. If you are not in compliance, an attorney may be able to help remedy any current noncompliance problems that you are facing to avoid future liability.
There are certain exceptions to the Anti-Kickback Statute which may relieve you of criminal liability.
If you are trying to claim any of the legal exemptions, it is advised that you to first speak to an experienced criminal healthcare attorney. They will be able to analyze what you are doing and provide a legal evaluation and risk analysis of any arrangements you enter into.
If you are charged under the Anti-Kickback Statute, there is a good chance you may face other civil and criminal charges.
If you are facing multiple charges, your attorney will be able to work through each charge. It is important to have an attorney that knows how to deal with a variety of different health care related charges, so they will know how each charge and case will impact the others.
Recent Cases and Their Impact
The issue of kickbacks is prevalent in the U.S. and is one of the more heavily persecuted healthcare fraud types of cases. The ability for whistleblowers to get payments for reporting cases of healthcare fraud has increased the amount kickback schemes being uncovered.
- Medical Professionals. In May of 2018 in South Carolina, the federal government obtained over $114 million judgment against a group of three medical professionals that were engaged in a kickback scheme. During the course of this scheme, the three would refer clients for unnecessary procedures and would get paid a handling fee for each one of the referrals. This case was brought forward to the attention of the FBI from a whistleblower suit, which means that whistleblower now will see a portion of the $114 million judgment.
- Pharmacies. In Miami-Dade County, 9 people were found guilty of a health care kickback scheme involving assisted living facilities. Each one of the 9 individuals was sentenced to a term between 8 months and 1 year and 1 day for their involvement in these kickback schemes. All of the 9 individuals were assisted facility owners that all conspired with a pharmacy to receive kickbacks and bribes for referring the parents to their pharmacy.
- Pharmaceutical companies. The DOJ also goes after pharmaceutical companies for offering reduced prices to doctors for their products being exclusively provided. Pfizer, Inc., one of the largest pharmaceutical companies in the world, was the subject of such an investigation in 2018. After an investigation, the federal government found that patients with federally funded insurance were being issued Pfizer prescriptions due to an illegal kickback that Pfizer had given. In a settlement, Pfizer agreed to pay about $24 million for their violation of the Anti-Kickback Statute. You may also face imprisonment for your kickback scheme.
What Do I Do If I’m Accused of Making an Illegal Referral
Understanding the law on kickbacks is important for any health care professional that refers clients. It’s recommended that all financial arrangements be evaluated by legal counsel with experience in medical law to determine the risk of Anti-Kickback Statute.
You should have an attorney perform an audit to find any potential problems so that you may address them. These efforts are important to ensure compliance with the anti-kickback laws.
The best way to avoid liability under the Anti-Kickback Statute is to make sure you are not receiving any benefits for any of your referrals.
If you are currently receiving any kickbacks, speak to your attorney to work on corrective actions to remedy any of these problems. If there were bills that were sent to Medicare and Medicaid in violation of the Anti-Kickback Statute you may be held criminally liable under the False Claims Act. You should speak to your attorney about potential problems to help get ahead of these problems.
If you are under investigation, you should retain experts to do a detailed accounting of all of your records as potential evidence to help your case.
If you are accused of a kickback scheme, contact a criminal defense with expertise in healthcare law. The charge of receiving kickbacks for referrals may put you in a position of having to serve time in prison so you should get ahead of these charges and work on fixing any problems you face.
It is important for you to contact an attorney to help defend you against the charge or investigation into kickback schemes. You need an attorney with a detailed understanding of the intricacies of the Anti-Kickback Statute to represent you in these cases.
Your money and your freedom may be on the line if you are found guilty.
An experienced attorney will plan the next steps and will be present during questioning to help you through the investigation process. The charge of receiving kickbacks can be a very serious charge and having a criminal attorney that specializes in federal criminal health care law can make all the difference.