Parker Poe attorneys have extensive experience advising clients on compliance with the federal anti-kickback statute. The federal anti-kickback statute prohibits, among other things, willfully (a) receiving payment directly or indirectly in return for referring an individual to an entity for the furnishing of a service paid for by the a federal healthcare program (such as Medicare), and (b) paying an entity to induce the entity to refer an individual for the furnishing of a service paid for by a federal healthcare program. The OIG (the federal agency charged with enforcing the statute), has traditionally embraced a broad interpretation of the statute. Therefore most transactions involving payment between a healthcare provider and a potential referral source can implicate the statute.

Our attorneys frequently assist clients in structuring transactions to comply with the anti-kickback statute, including advice regarding structuring of transactions to fit within the “safe harbors” promulgated by the OIG. Examples include the safe harbor for ambulatory surgery centers, the safe harbor for personal services contracts and management contracts, the “small entity” investment safe harbor, and the safe harbor for space rental arrangements.

The anti-kickback statute is similar to the federal Stark Law in that they both proscribe referrals in certain circumstances in which the referring party receives a financial benefit from the referral. However, the anti-kickback statute is not limited in application to physicians, and also is not limited in application to certain designated types of healthcare services. Each healthcare transaction with referring providers should be carefully analyzed and structured for compliance with both the anti-kickback statute and the Stark Law.

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