The federal Anti-Kickback Statute (AKS) prohibits knowingly and willfully offering, paying, soliciting, or receiving remuneration to induce or reward referrals for items or services payable by a federal healthcare program. Violations can result in significant fines, criminal penalties, and exclusion from federal healthcare programs.
Jackson LLP advises healthcare practices, physicians, and healthcare entities on Anti-Kickback Statute compliance. Our attorneys evaluate proposed practice ownership structures, employment and contractor arrangements, financial incentive programs, referral systems, and other financial relationships for potential kickback concerns.
Addressing Anti-Kickback Statute Compliance
Anti-Kickback Statute analysis is often part of a broader review of a proposed arrangement. We evaluate the purpose and structure of payments, the services being provided, the parties involved, and whether an applicable safe harbor or other exception may apply.
Our attorneys also review independent contractor arrangements and other compensation structures for potential Anti-Kickback Statute concerns. When a healthcare practice works with a management services organization (MSO), we evaluate management fees, financial incentives, referral relationships, and other terms of the MSO and MSA structure for compliance with applicable laws.
The Anti-Kickback Statute can overlap with the Stark Law and state self-referral, fee-splitting, and kickback laws. We consider these requirements together when reviewing a proposed transaction or financial relationship.
Anti-Kickback Statute Safe Harbors
The Anti-Kickback Statute includes regulatory safe harbors that protect certain arrangements when all applicable requirements are satisfied. Safe harbors address specific types of transactions and relationships, including certain employment, personal services and management contracts, space rental, equipment rental, and investment arrangements.
An arrangement that does not satisfy a safe harbor is not necessarily unlawful. However, you should evaluate it carefully to determine whether it creates risk under the Anti-Kickback Statute. Jackson LLP can assess whether a proposed arrangement fits within an applicable safe harbor and advise on structuring the arrangement when it does not.
If you are considering a compensation arrangement, referral relationship, MSO structure, or other financial relationship that raises Anti-Kickback Statute concerns, schedule a consultation with Jackson LLP.
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Frequently Asked Questions
What is the Anti-Kickback Statute?
The Anti-Kickback Statute is a federal law that prohibits knowingly and willfully offering, paying, soliciting, or receiving remuneration to induce or reward referrals for items or services payable by a federal healthcare program, such as Medicare.
What is considered remuneration under the Anti-Kickback Statute?
Remuneration generally includes anything of value, such as money, discounts, free services, and other financial or non-financial benefits. In other words, any kind of payment.
What are Anti-Kickback Statute safe harbors?
Safe harbors protect certain arrangements from liability under the Anti-Kickback Statute when all applicable requirements are met. An arrangement outside a safe harbor is not automatically unlawful.
Does the Anti-Kickback Statute apply to independent contractors?
Yes. Payments to independent contractors can raise Anti-Kickback Statute concerns when they are intended to induce or reward referrals.
Can an MSO arrangement raise Anti-Kickback Statute concerns?
Yes. MSO management fees, compensation structures, and other financial relationships can raise AKS concerns, particularly when payments are connected to referrals or federally reimbursable services.
What are the penalties for violating the Anti-Kickback Statute?
Potentially severe. Violations can result in criminal penalties, civil monetary penalties, exclusion from federal healthcare programs, and other consequences.