Cars go in reverse. So do ceiling fans and electric drills.
But did you know that kickbacks go in reverse, too, and that there’s no safe harbor for that?
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The federal Anti-Kickback statute, commonly referred to as the “AKS”, prohibits the offer of, demand for, payment of, or acceptance of any remuneration for referrals of federally funded healthcare program patients, such as those covered by Medicare or Medicaid.
There are exceptions, most notably regulatory “safe harbors,” that describe certain arrangements not subject to the AKS because they are unlikely to result in fraud or abuse.
Common among the situations falling into safe harbors are those protecting the remuneration that flows from an employer to an employee, and the remuneration from a facility, a hospital for example, to a medical group.
Interestingly, the safe harbors, like one way streets, run in one direction. So, remuneration from an employer to an employee is protected providing it meets the safe harbor for employment arrangements, and remuneration from a hospital to a medical group (i.e., from the principal to the agent) is protected providing it meets the safe harbor for personal services/management arrangements.
However, remuneration in reverse, from the employee to the employer or from the medical group to the hospital (i.e., from the agent to the principal), doesn’t. Note that the failure to fall into a safe harbor doesn’t automatically equate to “crime”, but that a complete analysis under the AKS is required to assess the likelihood that it is or isn’t a crime.
Let’s look at a couple of problematic examples to illustrate what I’m talking about.
The Just a Taste ASC contracts with Slippery Slope Anesthesia for all anesthesia services, but requires that Slippery Slope provide its own anesthesia machines and drugs. No safe harbor for that and, well, this one’s easy, everyone is likely headed to jail.
But if that were just a dream, and all that Just a Taste ASC asked for was an assignment of Slippery Slope’s billing in return for paying a lesser amount to the anesthesia group, then that discount, that potential “reverse kickback”, isn’t covered by a safe harbor. Maybe someone’s going to jail, but the specific facts are going to be important in a full analysis under the AKS. I wouldn’t hold my breath, but again, the facts are the facts, and they drive the analysis.
Just one more word on this. We can look at further analysis in two ways, analysis of the sort that I do for clients across the country, and analysis by the OIG, in the form of the work I do for clients in requesting OIG advisory opinions.
Let’s chat.
