Immunity Agreements in Kickback Investigations

Immunity Agreements in Kickback Investigations at a Glance

Immunity agreements play a critical role in kickback investigations, particularly in cases involving the Anti-Kickback Statute (AKS) and related federal laws. These agreements may be offered by prosecutors to individuals or entities in exchange for full cooperation, including the disclosure of evidence and testimony. However, such agreements must be carefully evaluated in light of the legal framework governing criminal enforcement, including the limitations period for federal offenses.

The Legal Framework

The 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. This statute carries severe penalties, including fines of up to $100,000 or imprisonment of up to 10 years, or both. The statute applies broadly and can be triggered by a wide range of conduct, including both overt and subtle forms of remuneration.

Prosecution of violations of the AKS is subject to the general limitations period for non-capital federal offenses, as set forth in 18 U.S.C. § 3282. This statute establishes a five-year statute of limitations for such offenses. Prosecutors must weigh the timing of immunity offers against this five-year window, as immunity agreements may be used to secure testimony or evidence that could otherwise be lost if the statute of limitations expires.

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

For further exploration of related topics, refer to the following pages: AKS Defense Research Topics, The Anti-Kickback Statute Explained, Safe Harbors Under the Anti-Kickback Statute, AKS and Stark Law Overlap, Recent Anti-Kickback Statute Decisions, and FAQ.