Some people make considerable sacrifices to become a doctor – sacrifices in time, money, and effort are all jeopardized when they’re accused of anti-kickback violations. If you are under investigation or accused of violating the federal Anti-Kickback Statute, it’s in your best interest to work with a healthcare fraud lawyer from Griffin Durham Tanner & Clarkson LLC.
A strong defense will help you avoid criminal penalties and prevent loss of your medical license. Contact us online or call one of our offices to schedule a consultation. Call (404) 891-9150 for our Atlanta office or (912) 867-9140 for our Savannah office. In the meantime, keep reading to learn about anti-kickback safe harbors, including property leasing and investment interests.
Quick Overview of Federal Anti-Kickbacks
Through the Federal Anti-Kickback Statute, 42 U.S.C. Sec. 1320a-7b(b), it’s a felony to knowingly and willfully offer, solicit, pay, or receive remuneration, either indirectly or directly, to induce business that is reimbursable through any federal healthcare program.
One of the most common allegations that healthcare professionals face in governmental investigations, board actions, and physician disciplinary proceedings are violations of the Anti-Kickback Statute. To be found guilty of such a violation, the following two key elements must always be proven beyond a reasonable doubt:
- Remuneration or compensation between the alleged parties to the violation
- Knowing and willful intent.
Board actions and disciplinary proceedings can have a grave impact on your future career, so any allegations made against you must be taken seriously. As the American Bar Association notes, the number one factor to focus on when hiring a lawyer is their experience.
Don’t put your future in the hands of an inexperienced attorney, instead, hire a healthcare fraud lawyer from Griffin Durham Tanner & Clarkson LLC because they have the extensive knowledge and experience you need to win your case.
The Government’s Burden of Proof
Remuneration can include anything of value that is received by the doctor–cash, donations, fights, rebates, or even consulting fees could lead to an alleged violation of the Anti-Kickback Statute. The courts have interpreted “remuneration” or compensation broadly. Specifically, in U.S. v. Greber, 760 F.2d 68 (3rd Cit. 1985), the court held that even attempting to induce referrals can constitute a violation.
After passage of the Affordable Care Act, the government does not need to provide specific intent to violate the AKS. However, because one of the required elements is knowledge of the act and unlawful intent of inducing reward or compensation, if the accused didn’t engage in an act with bad intent, they may be shielded through a related defense.
There are several safe harbors available to doctors through which violations of the Anti-Kickback Statute may be sidestepped.
Common Safe Harbors for Doctors and Other Healthcare Professionals
Safe harbors to the Anti-Kickback Statute protect doctors and other healthcare professionals when they engage in activity that might appear to be a violation but aren’t–in those situations, they are exempt from the claim. When a safe harbor is identified, the potential violator is found to have “good intent” and therefore can’t be found guilty of the potential crime.
One of the most common safe harbor provisions enables doctors to invest in facilities to which the physician refers patients, often often referred to as the “small investment safe harbor.” This allows doctors to earn a return on their investment, so long as particular standards are met.
Leasing office space to a doctor in a hospital or hospital-owned building triggers the Anti-Kickback Statute. However, the U.S. Department of Health and Human Services adopted a safe harbor that’s commonly known as the “space rental safe harbor.”
This safe harbor has multiple specific requirements, including a writing requirement and the term of the lease, however most importantly is that the rate can’t be based solely on other medical leases. If you’re worried that the lease you’re involved with, either as lessor or lessee, might not be protected by this safe harbor, contact Griffin Durham Tanner & Clarkson LLC today.
Bona Fide Employment
Professional services are often an essential corollary to medical services, and the AKS provides significant protections to “bona fide” employees. Although any remuneration provide to a “bona fide” employee can potentially fall outside the AKS, individuals and businesses need to be careful of government scrutiny of “employment” arrangements.
Facing healthcare fraud allegations? Call us.
Your reputation and career are far too important to risk not hiring the highly experienced healthcare fraud lawyers at Griffin Durham Tanner & Clarkson LLC if any allegations of fraud or violations of the Anti-Kickback Statute have been raised against you. Our experience in the safe harbors and exemptions could save your career.
Contact us online or call us to schedule your consultation. Call (404) 891-9150 for our Atlanta office or (912) 867-9140 for our Savannah office. We look forward to hearing from you.