Optional_2023 Board Resources

ARTICLE 1 ANTI-KICKBACK STATUTE

1.1 Description of Statute and Penalties . The federal anti-kickback statute 1 (AKS) prohibits knowingly and willfully paying, offering, soliciting, or receiving any remuneration (directly or indirectly and overtly or covertly) in return for or to induce either (a) the referral of any item or service for which payment may be made under a federal health care program or (b) the purchase, lease, order, or arrangement for any good, facility, service, or item for which payment may be made under a federal health care program. Violation of AKS is a felony and can result in up to ten years imprisonment and/or a fine of up to $100,000 per violation. Furthermore, violation of AKS can result in exclusion from participation in federal health care programs such as Medicare and Medicaid, as well as civil monetary penalties up to $100,000 per violation. Additionally, the Patient Protection and Affordable Care Act amended AKS to state that claims that result from a violation of AKS constitute a violation of the False Claims Act and clarify that specific intent to violate the AKS is not required. 2 1.2 Statutory Exceptions . The AKS itself lists certain payment practices that are not considered illegal remuneration under the law. 3 Such exceptions include: (a) Discounts or other reductions in price, if properly disclosed and reflected in the costs claimed or charges made by the provider; (b) Payments from the employer to a bona fide employee; (c) Payments from a vendor to a purchasing agent, provided (x) there is a written contract specifying the amount (at a fixed fee or fixed percentage) to be paid to such agent by the provider and (y) if the provider is an entity, such agent discloses to the provider-entity (and, upon request, to the Secretary of HHS) the amount paid by the agent to each vendor on behalf of the provider-entity;

(d)

Waivers of any coinsurance by a federally qualified health care center with respect to an individual who qualifies for subsidized services under the Public Health Service Act; Remuneration made pursuant to certain risk-sharing agreements pursuant to a Medicare Advantage plan; Certain waivers or reductions by pharmacies of any cost-sharing imposed under 42 U.S.C. § 1395w-101; Remuneration between a federally qualified health center and an MA organization pursuant to a written agreement; Remuneration between certain health centers and providers of services, which increase the availability, or enhance the quality, of services provided to a medically underserved population by the health center; and

(e)

(f)

(g)

(h)

1 42 U.S.C. § 1320a-7b(b). 2 PPACA § 6402(f)(1)(g)(codified at 42 U.S.C. § 1320a-7b(g) & (h)). 3 42 U.S.C. § 1320a-7b(b)(3).