Federal Regulations: Anti-Kickback and Self-Referral

Published 01/10/2018

Section 1128 (b) of the Social Security Act (42 U.S.C 1320a '7b(b)), provides criminal penalties for knowingly offering, paying, or soliciting remuneration in order to induce Medicare business. Health care providers found guilty of offering or receiving a kickback can be subjected to criminal or civil penalties. The offense can be classified as a felony and punishable by fines of up to $25,000 and imprisonment for up to five years, or both. The law also provides that prohibited business practices (which, in turn, may be construed to be kickbacks) can be handled under administrative authorities provided to the Office of Inspector General, which can result in health care providers being excluded from Medicare participation.

It is sometimes difficult to define the difference between what one might consider a legitimate business practice and a kickback. It is strongly recommended that any health care provider contemplating some Medicare promotional or discounting practice consult first with an attorney to avoid possible legal or adverse administrative consequences.

Physician Self-Referral
Section 1877 of the Social Security Act (42 U.S.C. §1395nn) prohibits physicians from referring certain Designated Health Services (DHS) to an entity with which the physician or a member of the physician's immediate family has a financial relationship unless an exception applies. Section 1877 also prohibits an entity from presenting or causing to be presented a bill or claim to anyone for a DHS furnished as a result of a prohibited referral.

Section 1128(b) of the Social Security Act provides criminal and civil penalties for health care providers found guilty of violating this statute.

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