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These are not the presents you're looking for

December holidays generally involve gift-giving for various culturally and religiously symbolic reasons. Kickbacks are the “presents” that healthcare providers should not receive, at any time of year. Healthcare is a critical sector in our society, accounting for 17.3% of the United States’ Gross Domestic Product in 2022. Thus, it is no surprise that it is heavily regulated to ensure fairness, quality, and integrity in and of care for patients. Among the laws governing healthcare, two stand out: the Stark Law and the Anti-Kickback Statute (AKS). These laws aim to keep physician medical judgment free of improper financial influence and prevent fraud and abuse in the healthcare system. However, their specifics and how they are enforced are different.

What is the Stark Law?

Named after Congressman Pete Stark (D-CA), who sponsored the original bill in 1988, the Stark Law prohibits physicians from referring Medicare or Medicaid patients for certain “designated health services” to entities with which the physician or an immediate family member has a financial relationship, unless an exception applies. This law is strictly liability-based, meaning violations can occur regardless of intent.

What is the Anti-Kickback Statute?

The AKS is a federal law that prohibits the exchange of anything of value to induce or reward the referral of federal healthcare program business. In simple terms, it is illegal to receive “presents” or kickbacks for referring patients to specific healthcare providers or services.

Stark Law vs. Anti-Kickback Statute: A Crucial Difference

Unlike the Stark Law, which only covers physicians and their immediate family members, the AKS applies to anyone who might be in a position to refer or generate federal healthcare program business, including patients.

Understanding the Anti-Kickback Statute

What Does the Anti-Kickback Statute Prohibit?

The AKS prohibits offering, paying, soliciting, or receiving any remuneration to induce referrals for services covered by federal healthcare programs. This includes not just cash, but also other forms of compensation such as gifts, discounts, or anything else of value, including excessive hospitality or inflated contracts.

Sham speaker programs are a common kickback scheme, where healthcare providers are paid eyebrow-raising honoraria and gifted all-expenses-paid trips to exotic locales in return for referring Medicare or Medicaid business to a pharmaceutical company or medical device manufacturer.

Which Healthcare Programs are Covered?

The AKS covers all federal healthcare programs, including Medicare and Medicaid. It also covers other federally programs funded healthcare programs such a TRICARE, FEHB, and VA, excluding the health insurance marketplace.

Penalties for Violating the Anti-Kickback Statute

Violating the AKS can result in severe penalties, including fines up to $50,000 per kickback, imprisonment, and exclusion from federal healthcare programs. As kickbacks “taint” Medicare and Medicaid claims, making them false claims, healthcare providers and others can be liable under the False Claims Act as well.

Safe Harbor Provisions

Yes, there are safe harbor provisions under the AKS. These are specific situations where payments do not violate the statute. However, payments must meet all requirements outlined in the regulations to be considered safe harbors.

Enforcement and Whistleblower Protection

The government enforces the AKS through various agencies, including the Department of Health and Human Services (HHS) and the Department of Justice (DOJ).

Whistleblowers play a vital role in detecting and reporting AKS violations. Under the False Claims Act, whistleblowers are protected from retaliation and may receive a portion of the recovery if their information leads to a successful enforcement action.

Reporting a Violation and Seeking Legal Representation

To report a violation of the AKS, one should contact an attorney experienced in healthcare fraud. The attorney will guide you through the process, which usually involves filing a sealed lawsuit on behalf of the government.

Legal representation is crucial in AKS cases. An experienced attorney can help whistleblowers navigate complex legal issues, protect their rights, and maximize the potential reward.

In conclusion, while the AKS may seem daunting, it is a necessary law that ensures integrity and fairness in our healthcare system for patients, keeps financial self-interest out of healthcare decision-making, and provides a level playing field for all providers and vendors. Whistleblowers who observe and report kickback schemes can earn more than a spot on the “nice” list; a relator in a successful qui tam lawsuit can take home 15-25% of the government’s recovery.

If you would like to report violations of the Anti-Kickback Statute, you can contact attorneys at Tycko & Zavareei LLP. Eva Gunasekera and Renée Brooker are former officials of the United States Department of Justice and prosecuted whistleblower cases under the False Claims Act. Eva was the Senior Counsel for Health Care Fraud. Renée served as Assistant Director at the United States Department of Justice, the office that supervises False Claims Act cases in all 94 United States District Courts. Eva and Renée now represent whistleblowers. For a free consultation, you can contact Eva Gunasekera at [email protected] or contact Renée at [email protected] (tel.: 202-417-3664). Visit Tycko & Zavareei LLP’s website for whistleblowers to learn more at

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