Anti-Kickback Statute: Perspectives from a Whistleblower Lead Counsel & Anti-Kickback Case Defendant

Course Description

The session will provide an overview of the Anti-Kickback Statute (AKS) and review what it prohibits, as well as review the Statute’s available safe harbors. It will also show how violation of the AKS can raise FCA concerns, and it will provide an assessment of enforcement activities, showing how participants may be at risk. In addition, the session will review recent cases and show how they potentially impact participants.

We will provide an in-depth review of the AKS, focusing on what is prohibited under the Act and what the exceptions are. We will also review the case law, particularly the early case law that sets the stage and basis for how the courts interpret the law. Since one of the exceptions to enforcement under the Act is regulations promulgated by the Secretary, the “safe harbors,” payment practices that will not be subject to criminal prosecution and that will not provide a basis for civil monetary penalties or exclusion from the Medicare or Medicaid programs, we will examine these safe harbors, particularly those more frequently used, to show how protection from enforcement can be achieved. Specifically, we will review the investment, space and equipment rental, personal services/management contracts, and physician recruitment safe harbors.

Mr. Weinbaum was the target of a federal investigation and defendant in two federal trials from 2003-2006 with Tenet Healthcare. In 2003 Alvarado Hospital Medical Center was raided by the FBI and he was subsequently indicted on 20 counts of violating the Anti-Kickback Statute. Over a span of three years, he was a co-defendant in two Federal trials along with the hospital and Tenet Healthcare; both ending in mistrials. A key lesson learned from the experience was that understanding the law, following corporate policy and procedure and advice of counsel did not insulate him from exposure to violating the Federal Anti-Kickback Statute.

The presentation will cover his entire ordeal, with plenty of color, and advice and recommendations regarding documentation, verbal and written correspondence with physicians and attorneys, material disclosure of facts, involvement of the hospital governing board and medical staff leadership regarding financial arrangements and whether the administrative team’s management style can create exposure for the entire organization.

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Learning Outcomes

• Learn the basics of the federal laws prohibiting healthcare fraud
• Understand Anti-Kickback Statute
• Provide attendees with an understanding of the Federal Anti-Kickback Statute
• Provide a perspective of how the courts and the Inspector General’s (OIG) office view compliance with the AKS
• Discuss recent enforcement actions taken by the OIG and its law enforcement partners
• Show how the courts deal with violations of the AKS

Areas Covered in the Session

• Federal Anti-Kickback Statute
• Remuneration
• Intent
• Anti-Kickback Exceptions
• Scope Established by Judicial Interpretation
• The Medicare and Medicaid Patient and Program Protection Act of 1987
• Safe Harbors: Recurring Themes
  • Not based on referrals
  • Fair Market Value
  • Written Agreement
  • No less than one year
• Pertinent Safe Harbors
  • Physician Recruiting
  • Employee
  • Ambulatory Surgery Centers
• OIG Advisory Opinions
• OIG Special Fraud Alerts
• United States v. Weinbaum
• Alvarado Trials
• Typical Alvarado Relocation Agreement Terms
• Prosecution Theory
• Defense Position
• Was it a Perfect storm?
• Lessons Learned from recent cases
• Advice & Recommendations
  • Documentation
  • Correspondence with physicians
  • Management staff and Organization

Recommended Participants

• Hospital Executives, Particularly CEOs, COOs, CFOs, CNOs, and CMOs
• Physicians
• Physician Organizations
• Law Firms Representing Hospital or Physicians
• Peer Review Organizations
• Hospital Associations
• Chief Compliance Officers
• Providers
• Physician Practice Managers
• Attorneys and Legal Staff
• Medical Providers Including Registered Nurses, Physician
• Assistants, and Administrative Staff
• Sales and Marketing Managers
• Customer Service Managers
• Risk Managers
• Other Healthcare Provider Executives

About the Presenter

William Mack Copeland, MS, JD, PhD, LFACHE, practices health care law in Cincinnati at the firm of Copeland Law, LLC.  A graduate of Northern Kentucky University Salmon P. Chase College of Law, Bill is a frequent author and speaker on health law topics. Copeland is a member of the American Health Lawyers Association, American, Ohio and Cincinnati Bar Associations and is a life fellow in the American College of Healthcare Executives. A former hospital chief executive officer, he was awarded the American College of Health Care Executives Senior-Level Healthcare Executive Regent’s Award in 2007. 

Additional Information

Snippets From Our Previous Session