Toward a Fair and Practical Definition of "Willfully" in the Medicare/Medicaid Anti-Kickback Statute

Authors

Tamsen D. Love

First Page

1029

Abstract

Health care fraud takes on a variety of forms-from billing insurance companies for services not provided, to falsifying injuries for tort plaintiffs, to practicing medicine without a license.' All these types of fraud contribute to the astronomical cost of health care in the United States. As federal policymakers have focused on ways to contain these costs, health care fraud has become an increasing object of scrutiny. At the same time, the health care industry is experiencing significant institutional change, particularly with the emergence of health maintenance organizations ("HMOs") and other managed care systems. The Medicare/Medicaid anti-kickback statute, which prohibits payments from one provider to another in exchange for future referrals, is caught in the crossfire. On the one hand, it addresses a costly form of fraudulent activity that may be pursued more vigorously in the overall attempt to control health care fraud and abuse. On the other hand, the statute is broadly worded, and technically it prohibits certain provider arrangements that are inevitable and desirable consequences of health care reform in the United States. Courts interpreting the statute will face the challenge of balancing concerns about the costs of fraud with the need to encourage health care reform in a fair, practical and consistent manner.

The anti-kickback statute prohibits offering, paying, soliciting or receiving any remuneration in exchange for future referrals or future use of a particular good, service, or facility. A common example of prohibited conduct involves a medical laboratory paying handling fees or referral fees to doctors who send specimens to the laboratory.' The statute prohibits not only cash payments, but also remuneration in kind.' Thus, for example, a hospital violates the statute by providing amenities to staff physicians in order to influence them to refer their patients to that hospital. A wide variety of business conduct potentially falls within the statute, because technically a violation occurs any time one health care entity gives something to another as part of an effort to increase its own business.

The broad reach of the statute, confirmed by current caselaw, has caused considerable anxiety in the health care industry. Furthermore, the criminalization of this type of conduct is implicated in a larger debate about the appropriateness of creating criminal penalties for conduct that is not inherently or obviously criminal.' Such overcriminalization may compromise due process rights by failing to give adequate notice of what behavior will result in criminal prosecution.

Recommended Citation

Tamsen D. Love, Toward a Fair and Practical Definition of "Willfully" in the Medicare/Medicaid Anti-Kickback Statute, 50 Vanderbilt Law Review 1029 (2019)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol50/iss4/5