Every once in while I get someone who asks me the following type of question: “Can you give me the name of one person who has gone to jail for violating the federal Anti-Kickback Statute in the context of . . . ” and then they go and describe some very specific fact situation, for example, in the subcontract they have with another medical group or in the agreement they have with an ASC or in their deal with a CRNA.
The fact is that there are a lot of people who’ve gone to jail for violating the federal Anti-Kickback Statute. Maybe not in the exact fact situation queried, but that’s usually irrelevant.
In essence, those questions are a bit like saying, “Do you know any left-handed people who have gone to jail for violating the federal Anti-Kickback Statute?”
What’s the difference whether you’re right-handed or left-handed? What’s the difference whether the violation takes place in the context of a hospital or in the context of a surgery center? What’s the difference whether the kickback was a discount as opposed to cash in an envelope handed over the countertop at a Denny’s restaurant? What’s the difference if no one has gone to jail for violating the AKS in the such-and-such context, when you might be the first one to be? It doesn’t make any difference.
The federal Anti-Kickback Statute, unlike Stark, is a criminal statute. There’s actually jail involved. And, people do go to jail.
But even if they don’t go to jail, groups fall apart, and whistleblowers file False Claims Act lawsuits that result in disgorgement of tens or even hundreds of millions of dollars of improperly billed and collected claims from federal health care programs. It’s serious stuff.
There’s an expression in carpentry, “measure twice, cut once.” We should have the same expression in terms of healthcare deals, something like “check compliance issues twice, then do the deal.”
Just don’t start cutting — or you’re going to find out that some of that cutting is on you.
After all, for those challenging me to give them “just one name” of anyone who’s gone to jail for an AKS violation involving some specific fact situation (the favorite appears to be some twist on the company model), you don’t want that name to be yours.
