Oberheiden P.C. The attorneys at Price Armstrong can help those seeking to report Medicare fraud contact us if you are aware of any Stark Law or Anti-Kickback Statute violations. 4131 N Central Expy, #900, Dallas, TX 75204, Oberheiden P.C. The Stark Law, unlike the Anti-Kickback Statute, flatly prohibits a broad range of financial relationships, and does not require proof of an intent to induce referrals. Unlawful kickbacks and financial arrangements are planned and carried out at many different levels of the healthcare system from individual medical offices to the executive offices of global pharmaceutical companies and the government has long viewed enforcement of the Anti-Kickback and Stark laws as material to preventing healthcare fraud, waste, and abuse. Clients and prospective clients should be aware that when referencing to Firm's experience, this experience may combine the knowledge and experience of both Firm and its frequently used Local Counsel in the aggregate. [1] https://oig.hhs.gov/compliance/provider-compliance-training/files/starkandakscharthandout508.pdf. This law applies only to physicians and only to certain designated health services including: The law also prohibits the organization providing these services from seeking payment from Medicare or Medicaid for services given as a result of a prohibited referral. Prior results do not guarantee similar future outcomes. Determining whether a particular financial relationship runs afoul of the Stark Law, however, can be more technically complicated. Important Differences between the Anti-Kickback Statute and Stark Law. ) 1320a-7b, Medicare-Medicaid Antifraud and Abuse Amendments, Pub. Whereas the Stark Law is only concerned with referrals from physicians, the Anti-Kickback Statute applies to referrals from anyone. bans anyone from soliciting or receiving remuneration of any kind in exchange for referring a patient for services for which a federal healthcare program pays or for purchasing an item or service for which a federal healthcare program pays. ) It establishes a number of specific exceptions for financial relationships between a physician and an entity that do not pose a risk of program or patient abuse. is headquartered in Dallas, Texas and it only maintains a fully equipped office in Dallas and Houston. The Stark Law, as it is known, prohibits a physician from referring a Medicare or Medicaid patient to an entity with whom the physician or their immediate family member has a financial relationship. 95% Success Rate. The AKS requires proof of actual unlawful intent. While both laws cover unlawful financial arrangements, there are important distinctions between them. It is critical to understand that while it is more than common to pay for business on a quid-pro-quo basis in many other industries, healthcare laws strictly forbid direct compensation for patient referrals. Thats why its important to consult a knowledgeable medical fraud attorney. The Stark Law prohibit providers from seeking to obtain referrals for treatment and ultimately, reimbursement from a government healthcare program. Quality reporting offers benefits beyond simply satisfying federal requirements. In addition to civil sanctions, the Anti-Kickback Statute also provides for criminal punishment. The penalties for violation of the Stark Law are limited to civil penalties, such as denial of payment, fines, reimbursement, and. We will protect your rights, reputation and freedom. Reporting a Stark Law or Anti-Kickback Statute violation through an FCA case is extremely difficult and complex. See how ASA is working to resolve three key economic issues that are impacting you, explore the resources of ASAs Payment Progress initiative, and test your anesthesia payment literacy! This makes them government contractors and, most of the time, subject to the False Claims Act (FCA). Immediate family members of the physician are defined as spouse, natural or adoptive parents, children, siblings, step- siblings, in-laws, grandparents, and grandchildren. Therefore, providers may not argue that they did not know they were violating the FCA because they were not aware the Anti-Kickback Statute existed. "@type": "Question", (not just physicians), Must involve a physician and an entity, Yes, statutory exceptions and safe harbors available. Guidelines, Statements, Clinical Resources, ASA Physical Status Classification System, Executive Physician Leadership Program II, Professional Development - The Practice of Anesthesiology, Join us in New Orleans for ANESTHESIOLOGY 2022 Oct. 21-25, Anesthesia SimSTAT: Simulated Anesthesia Education, Cardiovascular Implantable Electronic Devices, Electronic Media and Information Technology, Quality Management and Departmental Administration, ASA ADVANCE: The Anesthesiology Business Event, Anesthesia Quality and Patient Safety Meeting Online, Simulation Education Network (SEN) Summit, AIRS (Anesthesia Incident Reporting System), Guide for Anesthesia Department Administration, Medicare Conversion Factors for Anesthesia Services by Locale, Resources on How to Complete a RUC Survey, MIPS (Merit-based Incentive Payment System), Timely Topics in Payment and Practice Management, https://www.cms.gov/Medicare/Fraud-and-Abuse/PhysicianSelfReferral/List_of_Codes.html, Foundation for Anesthesia Education and Research. liability. Therapy services and supplies (physical, occupational, speech, radiation), Medical equipment and nutrients (parenteral and enteral), Prosthetics, orthotics and prosthetic devices, Inpatient and outpatient hospital services and prescription drugs, The provider and physician may be forced to refund the amount, The provider can face a civil fine of $15,000 for each service, including a civil assessment of three times the amount claimed, The physician or entity may also be excluded from claiming anything from Medicare or Medicaid going forward, The physician and provider can be held liable under the, Conduct like paying individuals to recruit homeless patients whose services would be charged to Medicaid, Kickbacks to hospitals in the form of rebates for medical devices, Agreements between providers, like an orthopedic and a physical therapist, to refer patients to one another in return for a percentage of the amount collected from the government, The fraudulent leasing of medical equipment as a way for a hospital to pay a doctor for referrals, The AKS requires proving intent (i.e. That list is updated annually and available at https://www.cms.gov/Medicare/Fraud-and-Abuse/PhysicianSelfReferral/List_of_Codes.html. "acceptedAnswer": { ("Firm") works with affiliated lawyers (referred to as "Local Counsel") in various cities and states across the United States. Former Senior Trial Attorney U.S. Department of Justice, Former U.S. Attorney & Former District Attorney. The Anti-Kickback Statute specifies certain optional safe harbors, whereas the Stark Law expressly excludes a number of exceptions from the purview of the law. Some examples are conspiracies between entities and physicians for laboratory services. }); The AKS Is Different from the Stark Law in Several Important Ways: STARK LAW & ANTI-KICKBACK STATUTE WHISTLEBLOWER PROTECTION & BENEFITS. There are certain codified exceptions, with detailed criteria that must be met. Classic examples of violations of Anti-kickback and Stark laws include: Hospitals, nursing homes, labs, dialysis centers, drug, or DME companies paying kickbacks to doctors through big salaries or consulting fees to serve as Medical Directors, proctors, or consultants, where the doctors do little actual, useful work; Hospitals, nursing homes, labs, dialysis centers, drug or DME companies offering doctors in a position to make referrals the opportunity to buy into surgical centers, distributorships, joint ventures, or other investment opportunities on favorable financial terms especially if those terms depend on the amount of business the doctor will refer; Hospitals paying their employed physicians salaries or performance bonuses tied directly or indirectly to the number of x-rays, lab tests, or procedures ordered at the hospital; Hospitals, dialysis companies, or other providers buying physician practices for inflated prices, with a requirement that the physician continue to work at the practice and refer business to the hospital or dialysis company; Hospitals offering physicians below-market-rate rent for office space, free access to clinical or administrative support staff, or other special deals on overhead expenses; Drug companies, DME companies, and providers of skilled therapy paying nursing homes for long term contracts to provide services to nursing home patients, or giving the nursing homes free or low cost access to consulting pharmacists, therapists, or other clinical or support staff to access their patient populations; Drug companies paying kickbacks to pharmacies (retail or specialty) to get them to switch patients prescriptions; Drug companies paying kickbacks to insurers to get on their formularies; Payments by specialty pharmacies, DME suppliers, therapy centers, nursing homes, etc. The AKS prohibits referrals for any kind of item or service where a kickback is involved, while the Stark Law prohibits only the referral of designated health services where a financial interest is involved. The attorneys at Price Armstrong have experience in successfully representing whistleblowers in FCA cases. This information may constitute attorney advertising in some jurisdictions. The amount of the award is also dependent on the role of the government in the litigation. (no proof of intent required), $15,000 and 3x the amount of improper payment and civil penalties of up to $100,000 per circumvention scheme, Applies to Medicare and any Federal Healthcare Program, Applies only to Designated Health Services (DHS) paid for by Medicare, Applies to any referral source Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation. Privacy Policy. 1320a-7b.) However, for civil monetary penalties, program exclusion, civil assessments, and False Claims Act Liability, the violation must have been done knowingly. The Anti-Kickback Statute, 42 U.S.C. 2022 American Society of Anesthesiologists (ASA), All Rights Reserved. 100-93. portalId: "5095596", assist service providers and businesses under investigation for alleged, Anti-Counterfeiting & Brand Protection Attorneys, Former Department of Justice Trial Attorneys, Former Federal Prosecutors, U.S. Attorneys Office. "name": "What is involved in blowing the whistle on unlawful financial arrangements and kickbacks? "text": "There are differences between the Anti-Kickback Statute and Stark Law, and regulations provide safe harbors permitting certain arrangements. "mainEntity": [{ The AKS contains voluntary safe harbors, while the Stark Law contains mandatory exceptions. } The AKS applies to any items or services that are covered by any government healthcare program, not just Medicare and Medicaid. Kickbacks and other unlawful financial arrangements give providers reasons to send patients for services they might not actually need. Amanda S. MarshallFormer U.S. Attorney (Local Counsel), Lynette ByrdFormer Assistant U.S. Attorney, Roger BachFormer Special Agent (OIG & DEA). Register now and save! The physician self-referral laws (Stark Laws) (See 42 U.S.C. The AKS prohibits any person or entity from offering, making, soliciting, or accepting remuneration, in cash or in kind, directly or indirectly, to induce or reward any person for purchasing, ordering, or recommending or arranging for the purchasing or ordering of federally-funded medical goods or services. There are differences between the Anti-Kickback Statute and Stark Law, and regulations provide safe harbors permitting certain arrangements. Take advantage of your member benefits. Although the financial penalties may be even greater than with the AKS, these are non-criminal charges. Referrals under the Anti-Kickback Statute include any item or service for which payment may be made in whole or in part under a Federal health care program.. "@type": "Question", Prior results do not guarantee a similar outcome. While both statutes are similar in nature, the notable differences between the statutes are outlined below. Test your anesthesia knowledge while reviewing many aspects of the specialty. References to a particular city or state other than Dallas, Houston, and Texas in any article or anywhere on this website does NOT mean that Firm maintains an office in that location, and it does NOT mean that Firm has attorneys physically located in that city or state. to patient recruiters or to patients directly." Are there ways to report what I know about an illegal kickback scheme if I do not wish to file a lawsuit? 2005 - 2022 Constantine Cannon LLP Attorney Advertising Disclaimers. Firm's engagement letter and Firm's website disclaimers provide additional details. But there are fundamental distinctions between the two laws. L. No. Personal services and management contracts, Waiver of beneficiary coinsurance and deductible amounts, Referral arrangements for specialty services, Price reductions offered to eligible managed care organizations, Price reductions offered by contractors with substantial financial risk to managed care organizations, Electronic health records items and services. While the Anti-Kickback Statute covers a broad range of activity, it also requires a showing of an intent to induce referrals. The criminal provisions of the Anti-Kickback Statute are violated where something of value is knowingly and willfully provided with a purpose to induce referrals. It prohibits the entity described above from presenting or causing to be presented claims to Medicare (or billing another individual, entity, or third party payer) for those referred services. ", Whistleblowers can Report Violations of the Anti-Kickback Statute and Stark Law Using the False Claims Act. 2022 Berger Montague All Rights Reserved, Whistleblower Lawsuits Against Medicare Advantage Organizations, Failure to Accurately Report Drug Prices Constitutes Medicare and Medicaid Fraud, Anti-Retaliation Group Presents Report to Congress on Importance of Whistleblowers Part I, Seventh Circuit Affirms Dismissal of Medicaid Fraud Case; Cites Federal Assignment Law. Unlawful kickbacks and financial arrangements are planned and carried out at many different levels of the healthcare system from individual medical offices to the executive offices of global pharmaceutical companies and the government has long viewed enforcement of the Anti-Kickback and Stark laws as material to preventing healthcare fraud, waste, and abuse. "name": "What is the Stark Law? The organization attempts to initiate a transaction that will increase profit. "text": "We cant list every way that people have tried to cheat the healthcare system, and people are always finding new ways. "@type": "Answer", 1320(a)-7b(g). 1320a-7b(b), covers a broader range of activity than the Stark Law, and extends to all medical providers in a position to arrange or recommend medical services. However, unlike the Stark Law, violators of the AKS can be criminally liable for fines up to $25,000 and up to a five-year prison sentence for each violation. "name": "What is the Anti-Kickback Statute? "name": "What is the Anti-Kickback Statute and the Start Law? ASA submitted comments on the AKS RFI which can be viewed here. The Anti-Kickback Statute and the Stark Law are the two federal statutes that are primarily responsible for this prohibition on compensation for referrals. } The federal Anti-Kickback Statute, 42 U.S.C. Whistleblowers can call attention to decisions made in the financial interests of a provider, and not in the interests of the patient. We represent clients nationwide with offices in Birmingham, AL, Tallahassee, FL and Albany, GA. Referrals under the Anti-Kickback Statute include any item or service for which payment may be made in whole or in part under a Federal health care program. While the Anti-Kickback Statute covers a broad range of activity, it also requires a showing of an intent to induce referrals. The criminal provisions of the Anti-Kickback Statute are violated where something of value is knowingly and willfully provided with a purpose to induce referrals. Every case is different, any prior result described or referred to herein cannot guarantee similar outcomes in the future. If you have been harmed by a defective product, a financial institution or other business, contact the attorneys at Price Armstrong. This information has been prepared for informational purposes only and does not constitute legal advice. Early bird savings end August 1. } "acceptedAnswer": { Contact Us for a Free, Confidential Consultation. Increased program costs for Medicare, Medicaid, and other payors; Hospitals, nursing homes, labs, dialysis centers, drug or DME companies, Hospitals paying their employed physicians salaries or , Hospitals, dialysis companies, or other providers, Drug companies, DME companies, and providers of skilled therapy, Payments by specialty pharmacies, DME suppliers, therapy centers, nursing homes, etc. Basically, anything of value to a person in a position to refer, such as cheap office space, patients referrals, a free employee, or a fat bonus, can classify as an illegal inducement under the Anti-Kickback and Stark laws. This financial relationship can include not only an ownership interest, but also a compensation scheme or even an agreement to pay the physician amounts far exceeding market value for their services. CMS maintains a list of designated health services by CPT code. Outpatient speech-language pathology services, Radiology and certain other imaging services, Parenteral and enteral nutrients, equipment, and supplies, Prosthetics, orthotics, and prosthetic devices and supplies, Inpatient and outpatient hospital services. }. 95-142; Medicare and Medicaid Patient and Program Protection Act of 1987, Pub. The Centers for Medicare and Medicaid Services (CMS) claims that kickbacks have led to overutilization and increased costs of healthcare services, corruption of medical decision making, steering patients away from valid services or therapies and unfair, non-competitive service delivery. "acceptedAnswer": { 1395nn, referrals are limited to certain types of medical services, such as lab testing, hospital services, prescription drugs, and durable medical equipment, defined as designated health services. In addition, the Stark Law applies only to relationships with physicians. The FCA allows the government to recoup funds it has given to contractors based on false claims for payment. "acceptedAnswer": { This amount can range between 15% and 25% of the total amount recovered depending on the type of information the whistleblower provides. "@type": "Answer", However, ASA members and their practices will need to stay informed on any changes to either of these sets of rules. "name": "What are some examples of unlawful kickbacks and financial arrangements? L. No. Penalties for violations of Stark Law include denial of payment for the DHS provided, refund of monies received by physicians and facilities for amounts collected, payment of civil penalties of up to $15,000 for each service that a person "knows or should know" was provided in violation of the law, and three times the amount of improper payment the entity received from the Medicare program, exclusion from the Medicare program and/or state healthcare programs including Medicaid and payment of civil penalties for attempting to circumvent the law of up to $100,000 for each circumvention scheme. If you are a Medicare Beneficiary, you can call the CMS hotline at 1-800-633-4227 or the OIG hotline at 1-800-447-8477. 440 Louisiana St #200, Houston, TX 77002, 250 S Park Ave #200 Winter Park, FL 32789, 2250 Southwest 3rd Ave, 4th Floor Miami, FL 33129, 30 Wall Street, 8th Floor New York, NY 10005, 1318 NW Northrup Street Portland, OR 97209, 9655 Perkins Rd, Suite C-203 Baton Rouge, LA 70810, 700 12th St NW STE 700 Washington, DC 20005. In such a case, a client will sign an engagement exclusively with the Local Counsel. Significant experience with the statutes and regulations is often required to to understand, analyze, and develop a False Claims Act case based on violations of them. ", The Stark Law prohibits physicians from referring patients to receive designated health services (DHS) payable by Medicare or Medicaid from entities with which the physician or an immediate family member has a financial relationship, unless an exception applies. The flip side of that is the organization is not allowed to seek Medicare or Medicaid reimbursement for services arising from that referral. 1320a-7b(b), covers a broader range of activity than the Stark Law, and extends to all medical providers in a position to arrange or recommend medical services. { Because its difficult to detect kickback schemes from a pure auditing perspective, whistleblowers are crucial to a great number of these FCA cases. The Anti-Kickback Statue (AKS) is somewhat similar to the Stark law. The civil penalties for violations of the AKS are very similar to those for violations of the Stark Law except that the violator can be hit with a fine of $50,000 for each violation. Its both a civil and criminal violation that can result in fines and jail time. L. No. This website contains attorney advertising. As the Department of Justice has explained, [p]atients are entitled to be sure that the care they receive is based on their actual medical needs rather than the financial interests of their physician. While both laws cover unlawful financial arrangements, there are important distinctions between them." There is much confusion between the Federal Anti-Kickback Statute and the Stark Law because both laws deal with remuneration related to improper referrals. Specifically, the Stark Law does the following: The following items or services are considered designated health services under the Stark Law: Civil penalties for physicians who violate the Stark Law include fines as well as exclusion from participation in federal healthcare programs. "@context": "https://schema.org", It also offers these whistleblowers legal protection from employment retaliation if they work for the healthcare provider when they file a complaint alleging an illegal kickback scheme. "text": "The Anti-Kickback Statute and Stark Law prohibit medical providers from paying or receiving kickbacks, remuneration, or anything of value in exchange for referrals of patients who will receive treatment paid for by government healthcare programs such as Medicare and Medicaid, and from entering into certain kinds of financial relationships. Basically, anything of value to a person in a position to refer, such as cheap office space, patients referrals, a free employee, or a fat bonus, can classify as an illegal inducement under the Anti-Kickback and Stark laws. "@type": "Question", We advise healthcare providers, business owners, and executives on all complex issues of healthcare law. "@type": "Question", Is there a risk to losing my job if I report what I know about an illegal kickback scheme through a False Claims Act lawsuit? It prohibits a physician from making referrals for certain designated health services payable by Medicare to an entity with which he or she (or an immediate family member) has a financial relationship (ownership, investment, or compensation), unless an exception applies. We can help you seek justice and protect your rights throughout the process. the fraud was not a mistake). The whistleblower is also entitled to reimbursement of their costs and fees in bringing the action. The AKS applies to all federal healthcare programs, and the Stark Law applies only to Medicare and Medicaid. The Stark Law holds a physician/DHS liable for reimbursing the government for any monies received in violation of the law, but it requires a person to have knowingly violated the law in order to receive a civil monetary penalty. Additionally, the whistleblower is entitled to compensation for bringing a successful FCA case on behalf of the government. To protect the integrity of the Medicare and Medicaid programs from these harms, Congress enacted a prohibition against the payment of kickbacks in any form. The Anti-Kickback Statute applies to any referral regarding any expenditure that any federal government healthcare program will pay for. 92-603, 242(b) and (c); 42 U.S.C. Other kickbacks include waving copayments, either routinely or on a selective case-by-case basis. Oberheiden, P.C. Specifically, if and when Firm cooperates with Local Counsel, Firm will disclose the details to the client in writing for their approval. Therefore, providers may not argue that they did not know they were violating the FCA because they were not aware the Anti-Kickback Statute existed." The False Claims Act protects whistleblowers from employment retaliation for those who file a case on behalf of the government. As part of efforts to review and refine regulatory processes to reduce administrative burden, CMS issued a Request for Information (RFI) regarding Physician Self-Referral Laws (Stark) via a proposed rule in June 2018 and accepted comments through August. These Local Counsel may assist the Firm on a case-by-case basis, operate their own respective law firms, are independent of Firm, and are not partners, owners, of counsel, or employees of Firm. to. The penalties for physicians and companies that violate the Stark Law can be incredibly costly: Plain violations of the Stark Law do not require an intent to break the law. If you need assistance with a Stark Law or Anti-Kickback Statute investigation, you should contact the experienced attorneys at Oberheiden, P.C.. Get a free and confidential consultation and benefit from talking to former federal and state prosecutors and experienced litigators. In contrast, the Stark Law applies only to an express list of Designated Health Services (DHS) composed of: (1) clinical laboratory services; (2) physical therapy services; (3) occupational therapy services; (4) outpatient speech-language pathology services; (5) radiology and certain other imaging services; (6) radiation therapy services and supplies; (7) durable medical equipment and supplies; (8) parenteral and enteral nutrients, equipment, and supplies; (9) prosthetics, orthotics, and prosthetic devices and supplies; (10) home health services; (11) outpatient prescription drugs; and (12) inpatient and outpatient hospital services. Enroll in NACOR to benchmark and advance patient care. Other examples of kickback include: The AKS is worded very broadly and is often wielded against hospitals, medical device companies, other healthcare entities, and even physicians. See Social Security Amendments of 1972, Pub. }, { formId: "5d6af30a-df47-4431-b9ca-2e5dfd34d5d3" Nationwide Federal Defense, Compliance and Litigation. }, { } However, if the whistleblower provides only public information their award is limited to 10% of the total recovered. Under the Stark Law, 42 U.S.C. They can lead to: As the Department of Justice has explained, [p]atients are entitled to be sure that the care they receive is based on their actual medical needs rather than the financial interests of their physician.. ", Claims for payment submitted to Medicare or Medicaid that include items or services resulting from a violation of the Anti-Kickback Statute are deemed to be false claims under the False Claims Act, even if the defendant did not have the specific intent to commit a violation of the Anti-Kickback Statute. Kickbacks and other unlawful financial arrangements give providers reasons to send patients for services they might not actually need. government-funded healthcare programs, including TRICARE and patients under the Department of Labor programs. Additionally, our healthcare fraud defense attorneys assist service providers and businesses under investigation for alleged Qui Tam Lawsuit, Stark Law, False Claims Act, or Anti-Kickback violations. Penalties under the AKS include criminal and civil and administrative penalties, whereas violations under the Stark Law are civil only. "acceptedAnswer": { If you are a Medicare Provider, you can use either of those resources or contact your local Medicare Administrative Contractor. A violation of the Anti-Kickback Statute constitutes a federal felony punishable by up to 5 years in prison and up to a $25,000 fine for each violation. Reading of this information does not create an attorney-client relationship. "text": "Under the Stark Law, 42 U.S.C. Violators of the AKS are still subject to the False Claims Act. Possible penalties for violating the AKS include: fines of up to $25,000, up to five years in jail, and exclusion from Medicare and Medicaid care program business. The federal Anti-Kickback Statute (AKS) (See 42 U.S.C. ACE 2022 is now available! 42 U.S.C. Dr. Oberheiden limits his practice to federal law. For example, in a kickback, also known as a bribe, the organization pays a provider to either refer a patient or purchase a piece of equipment and then seeks reimbursement from the federal government. In addition, if claims are submitted to government payers as a result of a self-referral arrangement that violates the Stark Law, those claims are considered false claims, and the parties to the arrangement may be liable under the False Claims Act. Typically, however, the core analysis looks at the a fundamental question: was something of value provided to induce health care referrals?
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