Criminal penalties for violating the Anti-Kickback statute include fines, jail terms, and exclusion from participation in the federal healthcare programs.
Physician Self-Referral Law [42 U.S.C. §1395nn]
The Physician Self-Referral Law, commonly known as the Stark Law, prohibits physicians from referring patients to receive “designated health services” payable by Medicare or Medicaid from entities in which the physician or an immediate family member has a financial relationship—unless an exception applies.
The Stark Law is a strict liability statute, which means proof of specific intent to violate the law is not required. The Stark Law prohibits the submission, or causing the submission, of claims in violation of the law’s restrictions on referrals. Penalties for physicians who violate the Stark Law include fines, as well as exclusion from participation in the federal healthcare programs.
Exclusion Statute [42 U.S.C. §1320a-7]
The OIG is legally required to exclude individuals and entities from participating in any federal healthcare programs who have been convicted of criminal offenses, such as Medicare or Medicaid fraud; patient abuse or neglect; other healthcare-related fraud or theft; or the unlawful manufacture, distribution, prescription or dispensing of controlled substances.
Providers are responsible for appropriately reviewing providers and not employing or contracting with excluded individuals or entities. Excluded individuals are prohibited from furnishing any type of service, including administrative and/or management services. This responsibility requires screening all current and prospective employees and contractors against OIG’s List of Excluded Individuals and Entities. This online database can be accessed from OIG’s Exclusion website (http://exclusions.oig.hhs.gov). If you employ or contract with an excluded individual or entity, at minimum, you may be subject to a civil monetary payment of $10,000 for each item or service furnished during the period that the person or entity was excluded from the federal program.
Civil Monetary Penalties Law
There are a wide variety of provider conducts in which the OIG can apply civil monetary penalties. These penalties range from $10,000–50,000 per violation, and the OIG has the authority to seek penalties in amounts based on their assessment of the type of violation.
The OIG may seek civil monetary payments from any person who:
- Presents claims to a federal healthcare program that the person knows or should know is for an item or service that was not provided as claimed or is false or fraudulent;
- Violates the Anti-Kickback Statute by knowingly and willfully offering or paying compensation to persuade the referral of business in federal programs or soliciting/receiving payment in return for the referral of any federal healthcare program business; and
- Presents a claim that he/she knows or should know is for a service for which payment may not be made under the physician self-referral or Stark Law.
Physicians are responsible for ensuring that each claim submitted accurately reflects the services provided in the practice. Each time a claim is submitted on the CMS 1500 form, it certifies that the provider knows and understands the requirements for billing the services to a payer. Each year, the OIG Work Plan is released and lists the priorities for that year, giving providers insight into areas that are being in jeopardy. It is imperative to know and understand the work of the OIG and what areas they are targeting, which will allow you to set priorities in your practice.
