The Anti-Kickback Statute can be used as the basis for a False Claims Act if the kickback is meant to induce someone to refer patients or business to the person making the payment. If the payment/inducement involves Medicare or Medicaid, then the kickbacks can be considered fraud which justifies a False Claims Act claim.
Not every payment or inducement to a hospital, physician, vendor, or even a payment is illegal. The federal Anti-Kickback Statute provides “safe harbors” which are essentially exceptions to the Anti-Kickback statute. An experienced whistleblower lawyer will review whether your disclosure fits into one of these safe harbors. If it does, then the lawyer may advise against filing a qui tam claim under the False Claims Act. If there is no safe harbor, then the False Claims Act lawyer is more likely to recommend making the disclosure to the government.
Anti-Kickback Safe Harbors
According to the Office of the Inspector General for the Department of Health and Human Services, the following safe harbors apply – if the precise terms of the statute are met.
- Investments in large publicly held health care companies;
- Investments in small health care joint ventures;
- Space rental;
- Equipment rental;
- Personal services and management contracts;
- Sales of retiring physicians’ practices to other physicians;
- Referral services;
- Employee compensation;
- Group purchasing organizations;
- Waivers of Medicare Part A inpatient cost-sharing amounts.
There are newer authorized safe harbors for the following types of business practices:
- Investments in underserved areas;
- Practitioner recruitment in underserved areas;
- Obstetrical malpractice insurance subsidies for underserved areas;
- Sales of practices to hospitals in underserved areas;
- Investments in ambulatory surgical centers;
- Investments in group practices;
- Referral arrangements for specialty services;
- Cooperative hospital service organizations.
Safe harbors are also permitted in some cases to help healthcare practitioners recruit other doctors.
Many times, a company will claim they are protected by a safe harbor when they really aren’t. Often the payment to get business is clearly an unauthorized kickback. Violations of the kickback laws can be used to file a False Claims Act whistleblower claims. To learn if your discovery of kickback qualifies for whistleblower payouts, call the California whistleblower firm of Stephen Danz & Associates. You can reach us at (877) 789-9707. Se habla espanol.