The U.S. Department of Justice has prioritized the prosecution of all healthcare fraud and related crimes. One of the most frequently charged federal criminal violations involves the Anti-Kickback Statute (AKS) of 1972.i The law provides for penalties that include a prison sentence of up to five years and the imposition of enormous fines for each violation.
The conduct violating the AKS also triggers the Civil Monetary Penalties Law (CMPL) that imposes a $50,000 penalty plus three times the amount of the kickback per violation. Any finding of violation under the AKS can also ban the defendant from participating in Medicare, Medicaid, or other federal healthcare insurance programs.
Any physician, corporation, or another person under investigation or charged with violation of the Anti-Kickback Statute needs the immediate help of a federal healthcare kickback lawyer at Stechschulte Nell. Federal indictments for any healthcare fraud require experienced criminal defense experts who are very familiar with 42 U.S.C. Section 1320a-7b(b). The law provides many “safe harbor” exceptions your criminal defense attorneys must understand.
False Claim Reimbursement Tripled — Some healthcare kickback crimes involve providing medical services to patients who don’t need the treatment or surgery that is billed to a federal healthcare program. These billings are considered false healthcare claims and are punishable by imprisonment for up to five years per claim. The penalty also requires the defendant to repay the amount falsely claimed plus an additional payment of three times the amount of the claim. With the increasing size of healthcare claim amounts, a common cardiac procedure could bill at $30,000 each. This penalty would demand repayment of the $30,000 plus $90,000 for each instance.
Mutual Criminal Liability — Federal prosecution of healthcare kickback crimes targets not only those who offer or pay the kickback, but also those who solicit or accept the kickback. Every party engaged in providing goods or services involving payment by Medicare, Medicaid, or other federal healthcare programs is liable to be unwittingly caught up in a federal Anti-Kickback Statute prosecution unless they alert to the risk.
Defining Healthcare Kickbacks
Under federal law, any exchange of something of value with intent to gain reward involving a federal healthcare business violates the Anti-Kickback Statute. Some people may describe it as a bribe. A physician who pays or receives a fee for a referral involving patients whose care will be paid through a federal program like Medicare or Medicaid has committed a healthcare kickback crime.
This broad definition is wide-reaching and encompasses an extraordinarily diverse set of potentially illegal scenarios. While the most common criminal violations involve remuneration for referrals, other forms of illegal healthcare kickbacks are more subtle and less obvious.
Anything of value can include cash, gifts, account credits, discounts, expensive trips, hotel stays, vacations, meals, excessive compensation for speaking, consulting, or directorships, and waivers of rent, fees, or other financial obligations. Some cases include fees for services never performed, or payment substantially over the value of the service.
Defending Federal Anti-Kickback Crimes – SAFE HARBORS
The general breadth of the federal healthcare Anti-Kickback Statute (AKS) meant that some legal conduct might fall within the scope of the criminal prohibitions. To remedy that apparent overreach of the law, the Department of Health and Human Services (HHS) adopted a long list of “safe harbors” describing what activity is excluded from criminal or civil liability.
The innocent scenarios cited by HHS include an expansive description of financial arrangements and interactions between physicians, partners in independent medical surgical centers, practice specialists, medical device manufacturers, and sales representatives, hospitals, home healthcare agencies, insurance companies, pharmacists and drug companies, and others whose normal business activities include exchanging goods or services for compensation.
Criminal Intent — Experienced healthcare kickback defense lawyers aggressively represent physicians, corporate executives, pharmaceutical companies, and others by challenging the government’s evidence on every necessary element requiring proof beyond a reasonable doubt. One of the most difficult elements for the government to prove is criminal intent.
In a 2021 Florida case in the U.S. Court of Appeals for the Eleventh Circuit, the court held that the prosecution was required to prove the defendant’s intent to engage in the illegal kickback scheme.
“To convict the defendants of paying healthcare kickbacks, the government had to prove that they “knowingly and willfully offer[ed] or pa[id] any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in case or in kind to any person to induce such person . . . to refer an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal healthcare program.” 42 U.S.C. § 1320a-7b(b)(2)(A). “Willful conduct under the Anti-Kickback statute means that the act was committed voluntarily and purposely, with the specific intent to do something the law forbids, that is with a bad purpose, either to disobey or disregard the law.” UnitedStates v. Nerey, 877 F.3d 956, 969 (11th Cir. 2017) (explaining that “attempts to hide . . . illegal kickbacks” were evidence of willfulness). But a defendant “need not have known that a specific referral arrangement violated the law” to be properly convicted. United States v. Sosa, 777 F.3d 1279, 1293 (11th Cir. 2015).”
United States v. Tonge, 18-11165 (11th Cir. Nov. 22, 2021)
And another recent Eleventh Circuit Court case resulted in the defeat of the government’s “one purpose” test which prosecutors long sought to use in Anti-Kickback Statute cases. In this argument, the government asserts it need not prove that the referral kickback was paid or received only for illicit purposes, but that the illicit purpose needed to be only “one purpose.” The court rejected the theory as it applies to payers of alleged kickbacks.
Stechschulte Nell, Attorneys at Law — Tampa’s Healthcare Kickback Crime Defense Lawyers
In Tampa and throughout Hillsborough County, the criminal defense lawyers at Stechschulte Nell excel in representing individual and corporate clients in federal prosecutions. Healthcare kickbacks allegedly involving circumstances protected by the law’s safe harbor provisions are not uncommon. Knowing those safe harbor exceptions thoroughly is imperative for your criminal defense attorney.
We are prepared, professional, experienced. Contact Stechschulte Nell today; 813-280-1244.