HMGT 372 ASSESSMENT 2

Running Head: LAW 1

LAW 4

Anti-kick Back Statute

Name

Institution

Professor

Course

Date

Name of the Law and or laws The Anti-Kickback Statute 1972 42 USC § 1320a-7b(b)

False Claims Act 31 U.S.C. 3729

To ensure the healthcare providers concerns are kept from making decisions that are improper based on motives for profit purposes, the Congress had the Anti-Kickback Statute enacted to safeguard the federal programs from excess usage of 63 Fed. Reg. 1659, 1662, in 1998, January 9th. Basically, Anti-Kickback Statute 1972 42 USC § 1320a-7b(b) happens to be a criminal law prohibiting the knowing as well as willful remuneration payment to either reward or induce patient referrals, or the business generation that involves any service or item that is payable by any Federal health care programs like Medicaid, TRICARE, or the Medicare patients 42 U.S.C. 1320 7b(b). There is the amendment of the safe harbors to safeguard the transactions with the probability of resembling the violation of Anti-Kickback Statue, though within the 42 CFR 1002.952 legal parameters (Hood, 2020).

Financial Responsibilities of the Management

It is the healthcare institutions responsibility to become aware of the risk associated with criminal in addition to administrative liability which is under the statute of Anti-Kickback, especially under 42 U.S.C. 1320 7b(b). However, being ignorant of the law cannot be an excuse.

Remuneration comprises of any valuable thing, it might also take lots of forms apart from cash, like free leasing, stays or meals that are costly as well as compensation that is excessive for medical consultancies or medical directorships. This is an indication that this Anti-Kickback Statue is known for prohibiting any individual from intentionally soliciting, receiving or offering any valuable thing in generation of referrals for services or items catered by Federal health care. Despite the fact that within healthcare it might be easy to become prey to the kick back situations, it becomes the healthcare institutions’ obligation to become updated on updates plus compliance trainings to make sure they remain within regulation. As per the Statue, to remain in compliance, physicians should never refer the Medicaid or Medicare patients to the specialists even when the procedure is considered necessary, in expectation of induced referral or monetary reward from the said specialist or the other way round 42 U.S.C. 1320 7b(b)(2).

Ethical or Legal Breach Consequences

Any intended and planned conduct that involves the receipt, payment, offer or solicitation of any sort of remuneration in exchange for referring a person or arranging and recommending the lease, ordering or purchasing of a service or item that might be partially or fully paid for by the federal health care tends to be prohibited 42 U.S.C. 1320 7b(b). The criminal repercussions for violating this Anti-Kickback Statute maybe ten years in prison, or a penalty of 100,000 penalty, a criminal fine of $100,000, one might pay up to three times in damage as well as get excluded from Medicaid or Medicare - 42 USC 1320a-7b(b); 42 CFR102.3). The civil penalty that is due to the violation of Anti-Kickback Statute might lead to a liability of False Claims Act 31 U.S. Code § 3729. Any individual acting in an irresponsible contempt or within deliberate truth ignorance or information falsity, can as well be found liable civilly under the known False Claims Act 31 U.S.C. 3729(b) (CVA and Bhagwan Satiani, 2021).

Case one Comment by Busayo Oyewole: What is the outcome of the case

2017, 19th December, the EmCare Inc., alongside Physician’s Alliance Ltd ended up settling for 33 million dollars in resolving claims related to kickback. The Justice Department found both physician’s groups accepted illegal remuneration 42 USC 1320a-7b(b) so as to refer patients to hospitals under the Health Management Associates ownership. The Justice Department had price that since 2008 to 2012, EmCare accepted remuneration from the HMA to have patients recommended to them for admission on an inpatient basis yet the patients were to be treated on an outpatient basis. Since the outpatient Medicare bills are three times less that for inpatient admissions, this was an abuse of the federal funds. In addition, EmCare Emergency Department Physician’s were paid by HMA specific bonuses tying the retention of the contracts in existence plus new contracts to have the admissions number increased into the Emergency Department.

The government had a legal obligation of filing charges against the involved groups since they intentionally and purposefully received remuneration alongside filing false claims that are not in compliance with Anti-Kickback Statute 42 USC 1320a-7b(b) as well as the False Claims Act 31 U.S.C. 3729(b).

Case two

2017, December 20th, the United Therapeutics Corporation, a pharmaceutical organization, paid $210 million after an agreement with the Justice Department. The conclusion was that the company utilized a foundation to be its channel in paying the Medicare patients copays taking their medications for pulmonary arterial hypertension, this violated the False Claims Act 31 U.S.C. 3729(b). As per the Anti-Kickback Statute 42 USC 1320a-7b(b), Pharmaceutical firms are prohibited from paying or offering, indirectly or directly any sort of remuneration, including money or any valuable thing in inducing Medicare patients into purchasing their products 42 USC 1320a-7b(b) (Ashwin Palaniappan, 2021).

United Therapeutics purposefully paid the federally funded insurance initiatives copays. Therefore, the DOJ was right legally to have charges pursued against them for violating willingly the Anti-Kickback Statute. They failed to comply with the Act of False Claims by intentionally selling their drugs through false pretense. Comment by Busayo Oyewole: What was the outcome of the case: judgement

Case three

2009, an employee of DaVita had a suit filed against them, after increasing concerns regarding the company’s financial transactions with its joint ventures. DaVita used to pay hidden kickbacks to the doctors to have patients referred into their dialysis clinics, eliminating their competitors. Through buying shares within dialysis centers owned by physicians above the fair market value, getting them paid not to build competitive dialysis centers, having them buy shares within DaVita at cheaper prices, the company was violating the Anti-Kickback Statute 42 USC 1320a-7b(b). Comment by Busayo Oyewole: What is the penalty or outcome of the case

Philips & Cohen Law firm represented Davis Barbetta the whistleblower. The case was all about DaVita intentionally bribing its joint business partners to have their competitors eliminated. This had their profit margins increase from $934 million to $1.55 billion since 2009-2013 in U.S. An estimate of 90% of the firm’s treatment get paid for by Medicaid and Medicare. This violates the Anti-Kickback Statute 42 USC 1320a-7b(b), this is due to bribing plus creation of an environment of unjust competition plus False Claims Act 31 U.S.C. 3729(b) courtesy of filing the false claims to get government financings (Hood, 2020).

Remedial steps by the HCO management to reverse the non-compliance institutions Comment by Busayo Oyewole: What is a specific remedial steps

Being the healthcare institutions manager, I would ensure that with all joint business ventures or prospected contracts, I would get advise from an expert healthcare attorney. In case of any agreements whereby the payments or the payment receipt might get misinterpreted, an attorney is needed for elimination of doubts. This provides an assurance that the firm is in direct compliance without any reason for claiming ignorance to the regulations. In my scope, I would make sure that compliance trainings tackle the tokens acceptance by staff plus physicians and give clarification. My obligation is developing open and clear communication lines with the staff alongside the compliance officer. With this trust level, the whistleblowers and observers of any probable compliance violations become confident in forwarding their concerns (Rose, 2021).

Conclusion

All through my research regarding the Anti-Kickback 42 USC 1320a-7b(b), it is evident that the 1977 congress was very right in enacting the statute. It is becoming common for the health facilities to engage within some sort of kickback to have their company favored within the field or competition eliminated. It is bias plus unfair legally to the federal government and to have patients get treated or admitted without proper cause. Anti-Kickback Statute is closely linked to the False Claims Act 31 U.S.C. 3729(b). This is because with the acceptance of kickbacks, claims are mostly inappropriately filed hence violating the False Claims Act plus the Anti-Kickback Statute.

References

Ashwin Palaniappan, B. A. (2021). Regulatory Changes Affecting Physicians’ Referral Practices. Rhode Island Medical Journal, 104(6), 70-72. https://search.proquest.com/openview/1ad8bb89c2b68d6d7d1d8108c9f77627/1?pq-origsite=gscholar&cbl=24126

CVA, A., & Bhagwan Satiani, M. D. (2021). DISCUSSION ARTICLE: FINALIZED CHANGES TO STARK & ANTI-KICKBACK STATUTE LAWS. Physician Leadership Journal, 8(4), 53-59. https://search.proquest.com/openview/b5b692352c5072239ba8d8176ec981a9/1?pq-origsite=gscholar&cbl=2037550

Hood, J. C. (2020). Are Good Deeds Being Punished?: Independent Charity Patient Assistance Programs and the Anti-Kickback Statute. Fla. L. Rev., 72, 639. https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/uflr72&section=18

Rose, R. V. (2021). THE NEW STARK LAW AND ANTI-KICKBACK STATUTE FINAL RULES PROVIDE NEW OPPORTUNITIES FOR VALUE BASED PROGRAMS AND VALUE BASED ARRANGEMENTS. EDPACS, 64(4), 1-11. https://www.tandfonline.com/doi/abs/10.1080/07366981.2021.1882104