We were each quoted in a Law360 article examining the status of the Anti-Kickback Statute (AKS) on the 50th anniversary of the law’s passing, and offered our perspective, informed by both our practices advising healthcare providers on AKS issues and our experience as government attorneys dealing with AKS issues, on the legal challenges and disputes among the courts on how to apply the AKS and the current state of the enforcement environment encountered by healthcare providers as it relates specifically to AKS issues.
The AKS was passed in 1972 and prohibits kickbacks in connection with federal healthcare programs. This article was the final installment in the Law360 series about the past, present and future of the AKS.
“There is a real battle going on right now,” Matt told Law360.”The defense bar certainly believes that the AKS has been stretched beyond recognition with some of the theories of liability we are seeing.” He added that “AKS issues are really hot right now” and noted that kickback cases have surpassed False Claims Act (FCA) lawsuits alleging other sorts of fraud schemes. When explaining this shift, Matt said “These cases are attractive from a plaintiff’’ perspective because the concept of a kickback or bribery typically is more readily explainable to a court or jury” than FCA cases involving other theories of liability such as false claims associated with medically unnecessary services. Matt is co-chair of the firm’s Healthcare Fraud Task force, which represents healthcare providers in connection with government investigations and related litigation, and previously served as Civil Chief at the U.S. Attorney’s Office for the Middle District of Tennessee.
Speaking about the more difficult to spot alleged kickbacks featured in cases pursued in more recent years, Stewart noted that “You’ll probably see whistleblowers hunting harder for hidden payments, if they exist. Because the more low-hanging-fruit speaker programs have been cleaned up, in large part, at least by the large stakeholders.” Stewart’s perspective on AKS enforcement is informed by his prior role with HHS-OIG as Senior Counsel in the Office of Counsel to the Inspector General – Industry Guidance Branch where he was a lead author of several of the proposed and final safe harbors HHS-OIG issued as part of the Regulatory Sprint to Care.
The adoption of electronic health records (EHR) in the healthcare industry within the last decade has opened up new potential for fraud under the AKS. “EHR is a very different beast than the traditional kickback case,” Stewart noted.
In late March 2023, the Department of Health and Human Services Office of Inspector General (HHS-OIG) released an online FAQ focused on arrangements between EHR vendors and clients noting how the AKS could be triggered under certain circumstances. Speaking to Law360 after the FAQ release, Jennifer, a former chief of the OIG’s Industry Guidance Branch, said the EHR section was “a big deal. A lot of people aren’t going to be happy when they see OIG’s answer.”
In discussing the potential penalties and damages companies and individuals may be liable for under the AKS and FCA, Jennifer said “You very quickly get into the billions of dollars, with a B. It just becomes astronomical very quickly, which is why so many people settle.” During her tenure leading OIG’s Industry Guidance Branch, Jennifer led the Branch’s issuance of dozens of advisory opinions and Special Fraud Alerts, many of which dealt specifically with AKS issues.
The full article, “FCA Chases ‘Shrewder’ Kickbacks As 50-Year Hunt Intensifies,” was published by Law360 on May 10 and is available online.