June 29, 2015

Doctors Be Warned: DOJ Steps Up Enforcement of Anti-Kickback Law Against Individual Medical Professionals

By Tim McCormack and Molly Knobler

The Department of Justice has recovered millions of dollars from hospitals, nursing homes, pharmaceutical companies and other medical providers through civil and criminal enforcement of the Anti-Kickback Law.  But the agency has begun paying increased attention to the doctors, nurses and administrative professionals on the receiving end of these bribes.

The Anti-Kickback Law (42 U.S.C. § 1320a-7b) makes it illegal to “knowingly and willfully offer[] or pay[]” or “solicit[] or receive[] any remuneration” in exchange for referring, ordering, or otherwise making arrangements for the provision of healthcare services payable by Medicare or Medicaid.  The Department of Justice has historically focused on those “offering” or “paying” the kickbacks, leading to significant recoveries from major healthcare providers.  Now it seems the government is expanding its enforcement reach to also go after the individuals on the other side of these illegal payments.

Just last week, for example, a New Jersey doctor was sentenced to three years in prison for his role in a kickback scheme in which he received monthly payments for referring blood work to a medical lab (Biodiagnostic Laboratory Services) for diagnostic testing.  Similarly, a nurse in Connecticut plead guilty to charges of accepting $80,000 in kickbacks from pharmaceutical company Insys Therapeutics in exchange for prescribing one of their powerful painkillers.  With these and other enforcement actions, the government is clearly putting the medical community on notice that when it comes to illegal kickbacks, it is open season for both the givers and the takers.  It is a message the government highlighted in its recent fraud alert specifically warning physicians about questionable compensation arrangements, and one it is beefing up its enforcement ranks to specifically back up.  Indeed, just a few weeks ago, the HHS Office of the Inspector General announced hiring additional attorneys to focus on this very type of physician misconduct.

Luckily, for physicians and other medical professionals who want to avoid this widening anti-kickback dragnet, or who have concerns about specific arrangements they are approached with, exposed to or already embroiled in, they are not without recourse.  The False Claims Act, a civil war-era federal law, provides protection and rewards to those who blow the whistle on government fraud.  There are numerous examples of whistleblowers who changed the face of medical industries, and sometimes recovered handsomely, by speaking out in just such circumstances.

With the federal government increasingly willing to pursue private individuals, doctors and others in positions with responsibility for the care of the country’s seniors and disabled, when faced with questionable payment arrangements, should ask themselves, whether they want to be on the Government’s team or in its crosshairs.

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If you would like more information or would like to speak to a member of Constantine Cannon’s whistleblower lawyer team, please click here.

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