Reading Recent AKS Decisions: What the Rulings Establish

Reading Recent AKS Decisions: What the Rulings Establish at a Glance

Recent interpretations and enforcement actions under the Anti-Kickback Statute (AKS) continue to emphasize the one-purpose test, a legal standard that has been reinforced by key court decisions. This test establishes that a violation occurs if any purpose of a payment is to induce or reward referrals for items or services payable by a federal health care program. These rulings clarify that even partial intent to influence referrals can trigger liability, regardless of other legitimate purposes of the payment.

The Legal Framework

The Anti-Kickback Statute, codified at 42 U.S.C. § 1320a-7b(b), criminalizes the knowing and willful offer, payment, solicitation, or receipt of remuneration to induce or reward referrals of items or services payable by a federal health care program. The statute imposes penalties including fines of up to $100,000 and imprisonment of up to 10 years, or both. Importantly, the statute does not require proof of a primary intent to induce referrals; rather, it focuses on whether any purpose of the payment is to influence referrals.

The one-purpose test has been established through key judicial decisions. In United States v. Greber, 760 F.2d 68 (3d Cir. 1985), the Third Circuit held that if payments were intended to induce a physician to use the payor's services, the AKS is violated even if the payments were also intended to compensate for legitimate professional services. Similarly, in United States v. McClatchey, 217 F.3d 823 (10th Cir. 2000), the Tenth Circuit adopted this test, holding that a person violates the AKS if one purpose of the offer or payment is to induce Medicare or Medicaid patient referrals. The court rejected the use of a primary-purpose jury instruction, reinforcing the one-purpose test as the governing standard.

Enforcement and Cases

Since the rulings in Greber and McClatchey, courts have consistently applied the one-purpose test to modern payment structures. This approach underscores the broad reach of the AKS and highlights the importance of scrutinizing the intent behind any financial arrangement that involves referrals. These decisions serve as a legal benchmark for evaluating whether a payment structure crosses the line into prohibited conduct, even when multiple purposes are involved.

The Federal Overlay

The federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b), makes it a felony to knowingly and willfully offer, pay, solicit, or receive remuneration to induce or reward referrals of items or services payable by a federal health care program. The Stark Law, 42 U.S.C. § 1395nn, separately prohibits physician self-referrals for designated health services payable by Medicare or Medicaid, on strict-liability terms. Both regimes carry safe harbors and exceptions published at 42 C.F.R. § 1001.952. State referral and fee-splitting statutes operate alongside these federal prohibitions and can apply even where no federal program payment is involved.

Reading the Research Desk

To explore related topics in depth, visit the AKS Defense Research Topics desk, the statute explainer, the safe-harbor research note, the AKS/Stark overlap analysis, the recent decisions, or the FAQ for further clarification.