Access article: A Survey of Health Care Anti-Kickback Law at the State Level
Access survey: State Health Care Anti-Kickback Analogues

Scott B. McBride, Steven Llanes, and other members of Lowenstein Sandler’s Litigation and White Collar Criminal Defense teams have published a nationwide survey of state anti-kickback laws in order to inform health care institutions, executives, and employees on the potential criminal, civil, and administrative liabilities associated with paying or receiving remuneration in return for health care referrals or purchases.

The survey is accompanied by an article with information on the federal health care Anti-Kickback Statute (Federal AKS), which targets bribery and corruption in federal health care programs. McBride describes the Federal AKS as “an incredibly far-reaching law” that gives federal enforcement agencies “an arsenal of weapons to target questionable business arrangements in the health care industry.” There is no de minimis remuneration under the Federal AKS, and a quid pro quo is not always necessary to violate the statute.

However, the federal statute represents only part of the risk for health care companies, providers, and individuals. As the article explains, “[a]ll but one of the 50 states, as well as the District of Columbia, have analogous commercial bribery laws on the books that target corruption in the health care industry.” Thirty-five states proscribe kickbacks in the health care industry “even if the goods or services are reimbursable only by private health insurance and involve no public money at all.”

The Lowenstein survey lays out the different laws in each jurisdiction where health care facilities and their employees should mitigate risk of prohibited practices. In addition to criminal fines and prison sentences, many states impose professional punishment such as the revocation of medical licenses.

Some state laws are stricter than others, warns McBride. In New Jersey, a physician may not accept from a pharmaceutical company “any item of value that does not advance disease or treatment education,” including “pens, note pads, clipboards, mugs, or other items with a company or product logo, [as well as] floral arrangements.”

In Florida, the degree of criminal penalty depends on the number of patients affected, with fines up to $500,000 and imprisonment up to 30 years for conduct involving 20 patients or more. In Arizona, on the other hand, penalties are based on the amount of the kickback in question: A payment between $101 and $999 is considered a Class 4 felony punishable by 1 to 3.75 years of imprisonment and a fine of up to $150,000. Restitution with interest may be required in some jurisdictions. 

A former member of the U.S. Attorney's Office in Newark, New Jersey, where he was a member of the Health Care & Government Fraud Unit, McBride now focuses his practice on matters of government, securities, financial, and health care fraud; Foreign Corrupt Practices Act violations; and civil business litigation.

The survey’s other authors include Anthony J. Cocuzza, Rachel Moseson, and Jarrett R. Schindler.

Access article: A Survey of Health Care Anti-Kickback Law at the State Level
Access survey: State Health Care Anti-Kickback Analogues