A NY Criminal Lawyer Explains Anti Kickback Regulations
Kickbacks are considered a type of anti-competitive practice, and may also be classified as a type of bribery. Kickbacks occur when funds are misappropriated or misused in order to improperly reward a person or organization for giving some advantage to the payor of the kickback. For example, if a government official awards a contract to a particular company in exchange for a kickback, the company benefits and pays the government official a kickback for that benefit.
Federal laws prohibit kickbacks in many different situations, including prohibiting kickbacks to induce award of a contract with the federal government, as well as prohibiting kickbacks in connection with healthcare services paid for by the government. Understanding all of the different laws that prohibit kickbacks can be complicated, but those accused of wrongdoing need to know what charges they face and what defenses may be available to them. An experienced NY criminal defense lawyer at Bukh Law Firm, PLLC can provide the assistance that you need in fighting serious federal charges.
What is the Federal Anti-Kickback Statute?
The Anti-Kickback Statute is codified in 42 U.S. Code Section 1320a-7b. The federal statute stipulates that:
- No “renumeration, in cash or kind”
- Can be offered, solicited, accepted, or received
- Willfully and knowingly
- In order to induce or provide patient referrals; business referrals; or referrals related to purchasing, leasing, or ordering goods, services, facilities, or items.
- If payment will be made, in whole or in part, through any federal healthcare program such as Medicaid or Medicare
A prosecutor must prove all of these elements to demonstrate a criminal violation of the Anti-Kickback Statute. Limited exceptions are also made for bona fide payments to W-2 workers; for legitimate discounts including some prescription drug discounts; for paying purchase agents; for specific types of risk-sharing agreements; and for a small number of other transactions that fit within safe harbor provisions.
In general, however, the statute makes clear that no one should be paying cash or providing other benefits, nor should anyone be receiving cash or other benefits, in exchange for services that are paid for by federal health insurers.
Penalties for violations of the federal anti kickback statute are significant. Defendants who are convicted could face fines up to $25,000 per violation and could face a five year prison term for each violation. Civil monetary penalties and exclusion from federal programs is possible, including civil assessments of up to three times the amount of the kickback.
The civil and criminal consequences can be devastating, but conviction does not have to result from accusations. There are options for fighting to get charges dropped; for negotiating plea deals or immunity deals; and for defending yourself from accusations. The job of a NY criminal defense attorney with experience in anti-kickback cases is to help you to develop the right approach to responding to charges that will minimize the chances of conviction and/or that will help to reduce the potential penalties associated with accusations against you.
What Other Anti Kickback Regulations Exist?
The Anti-Kickback Statute is just one of several different federal anti kickback regulations that are intended to help protect the integrity of the healthcare system. The Stark Law, which is codified at 42 U.S. Code Section 1395 nn is another anti-kickback law which specifically applies to physician referrals.
The Stark Act precludes physicians from referring Medicare patients to entities that either the physician or the doctor’s immediate family member has a financial interest in, unless an exemption applies. Unlike other anti-kickback laws, prosecutors do not always have to prove there was intent to violate the law in order for penalties to be imposed. The Stark Law is a strict liability law because sanctions can be imposed whenever a referral is made that is prohibited by law when no exception applies.
Kickbacks are not just prohibited in healthcare either. The Anti-Kickback Act of 1986, codified in 41 U.S.C. Sections 8701 to 8707 prohibits kickbacks and gratuities from being offered, paid, solicited, or accepted for purposes of inducing a contract with the federal government.
All of these laws, together, aim to prevent corruption in systems where the federal government pays out money to private entities, either through government contracts or government insurance programs. Defendants who violate these laws, from public officials to companies to doctors, can expect to face serious consequences.
In addition to the potential for imprisonment for violating any anti kickback law, plaintiffs could find themselves named as defendants in qui tam lawsuits by whistleblowers. These lawsuits are brought under the False Claims Act, and the purpose is to help the government recover improperly-paid taxpayer funds. The whistleblowers who file qui tam lawsuits get to keep part of the cash when the government is successfully able to recover funds obtained improperly.
How Can a NY Lawyer Help You If You’re Accused of Violating An Anti Kickback Law?
If you have been accused of violating any anti kickback regulations, understanding what your legal options are is important. Laws prohibiting kickbacks generally require intent, with the exception of some Stark Act violations. This means prosecutors have to prove the money or items of value were offered, accepted, paid, or solicited for the specific purposes of inducing business or inducing a government contract. Defendants can argue there is no proof of intent, or can point to one of the exceptions or safe harbor provisions to argue they acted in accordance with legal requirements.
Building a defense and developing an effective legal strategy when responding to accusations that anti kickback statutes were violated is complicated because of the technical nature of the regulations, so you need an attorney who knows the law well. Bukh Law Firm, PLLC can provide you with a vigorous defense to all criminal charges and can help you to develop a comprehensive legal strategy aimed at resolving both criminal and civil cases against you. Give us a call today so we can help try to keep you and your company safe from criminal penalties that could include jail time and significant financial damages.