The Anti-Kickback Statute Explained

The Anti-Kickback Statute Explained at a Glance

The Anti-Kickback Statute (AKS) is a federal law that prohibits offering, paying, soliciting, or receiving remuneration to induce or reward referrals of items or services payable by federal health care programs. Violations can lead to severe penalties, including fines and imprisonment. The statute is enforced with a strict one-purpose test, meaning that even if a payment has multiple purposes, if one purpose is to induce a referral, it constitutes a violation.

The Legal Framework

The Anti-Kickback Statute is codified at 42 U.S.C. § 1320a-7b(b), which makes it a felony to knowingly and willfully engage in any of the prohibited acts. The statute carries a maximum fine of $100,000 and a maximum imprisonment of 10 years, or both. Since 2010, any claim involving items or services resulting from an AKS violation is considered a false or fraudulent claim under the False Claims Act, as outlined in 42 U.S.C. § 1320a-7b(g).

The AKS includes specific exceptions and safe harbors, which are detailed in 42 C.F.R. § 1001.952. These safe harbors cover various arrangements, including investment interests, space and equipment rental, personal services and management contracts, referral services, group purchasing organizations, and electronic health records items and services. These provisions help define permissible conduct under the AKS.

Enforcement and Cases

Court decisions have helped shape the interpretation of the AKS. 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. This established the one-purpose test as the standard for determining intent under the AKS.

Similarly, in United States v. McClatchey, 217 F.3d 823 (10th Cir. 2000), the Tenth Circuit adopted the one-purpose 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 a primary-purpose jury instruction, reinforcing the strict standard applied in AKS cases.

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

Further research on the Anti-Kickback Statute and related legal issues can be found in these internal pages: AKS Defense Research Topics, Why Referral Payments Trigger Scrutiny, Safe Harbors Under the AKS, AKS and Stark Law Overlap, Recent AKS Decisions, and FAQ.