One of the major statutes regarding health care fraud is a provision of the Social Security Act known as the Anti-Kickback Statute. Enacted in 1972, the statute has been amended six times. Its current version prohibits the payment or receipt of an remuneration that is reimbursable by a Federal health care program in return for patient referrals or business recommendations. Violations carry maximum penalties of a $50,000 fine and 5 years imprisonment.
In order to successfully prosecute under the current statute, the government must prove beyond a reasonable doubt the following six elements:
(1) knowing and willful conduct
(2) consisting of the solicitation, receipt, payment, or offer
(3) of “any remuneration,” whether in cash or in kind, directly or indirectly
(4) to induce or in return for
(5) [a] referring an individual for, [b] purchasing, leasing, ordering, or arranging for or [c] recommending the purchase, order, or lease of
(6) any item or service reimbursable, in whole or in part, by a Federal health care program. Equal liability is imposed by the statute on both participating members of any such deal.
The statute has many purposes. The first is to prevent the overutilization of costly services, which would not occur absent the Federal reimbursement. The second is to protect the freedom of patient choice. Referrals are the main way patients connect with new doctors, and a bought-off referral unfairly affects the patient. Finally, along the same lines, the law is intended to foster provider competition in the health care services industry.
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