The Benefits Of Anti-Kickback Law

First implemented in 1985 by Aetna (previously U.S. Healthcare), P4P programs were used to reward top performers and improve outcomes (Bruno, 2012). The incentives were meant to improve the quality of patient care by basing incentives on patient outcomes. Conversely, fee-for-service reimbursements are based on the treatments and set limits on the amount reimbursed for services. Because of these limits, incentives for use of pharmaceuticals and non-invasive procedures can impact how physicians practice.

It is commonly believed that the method of physician remunerations affects their professional behavior. As a result, payment systems are therefore manipulated in attempts to achieve policy objectives with the primary aim to improve quality of care, contain cost and maintain recruitment of human resources in underserved areas. (2,1)

Health care fraud and abuse is a significant contributor to high health care spending, resulting in the wasteful spending of health care dollars. The Federal Bureau of Investigation (FBI) and National Health Care Anti-Fraud Association (NHCAA) estimates that 3 to 10 percent of health care dollars are lost to fraud and abuse (Federal Bureau of Investigation, 2010). Fraud is the intentional deception or misrepresentation that an individual knows to be false or does not believe to be true and makes, knowing that the deception could result in some unauthorized benefit to themselves or some other person (Ryan, 2006). Bloomberg reports health care expenditures are rising faster than the rate of inflation and spending in the US has nearly doubled in the last decade and one-half of health care

The federal Anti-Kickback Statute is a criminal statute that prohibits the exchange (or offer to exchange), of anything of value, in an effort to induce (or reward) the referral of federal health care program.  In return for purchasing, leasing, ordering, or arranging for or recommending purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under a Federal health care program. For the mens rea requirement the defendant must “knowingly and willfully” solicit, receive, or pays any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly in cash or in kind to induce such person…to purchase, lease, order, or arrange for or recommend purchasing…or

Although the Stark law does not apply to ASCs, the federal Anti-kickback Statute does apply. The Anti-Kickback statute prohibits any person from “knowingly and willfully” providing any remuneration to induce referrals, or in exchange for referrals, of federal health care program patients or business.2 Accordingly, the Anti-kickback Statute applies to any physician-owned ASC that treats federal health care program patients (including Medicare and Medicaid), in that the potential return on investment, arguably, could be viewed as an inducement for physician investors to refer to the ASC. However, there is an ASC “safe harbor” under the Anti-kickback Statute, which protects various types of physician-owned ASCs as well as hospital/physician ASC

The pharmacist submitted claims for reimbursement on brand name medications rather than on the less expensive generic drugs that were actually dispensed. This is a result of health care fraud on Medicare part D, which is in violation of the False Claims Acts (FCA) and anti-kickback statues. "The FCA protects the government from being overcharged or sold substandard goods or services" (CMS, 2015). The federal Anti-Kickback Statue is designed to protect patients and federal health care programs from fraud and abuse. It states "that anyone knowingly and willfully offer, pay, solicit, or receive any remuneration directly or indirectly to induce or reward referrals of items or services reimbursable by a Federal health care program" (CMS, 2015)."The

This newer reimbursement system has been a topic of contention amongst a large portion of the professional medical community due to the perceived unfairness that it brings in certain situations where a patient must be readmitted and, as a consequence, the primary care providers may not be reimbursed for the readmission regardless if they were responsible. With the introduction of the Affordable Care Act in 2010, further criteria such as the Readmissions Reduction Program have been added that determines the eligibility of a primary care provider being reimbursed through the Medicare/Medicaid program. These new requirements have led to new avenues of contention amongst healthcare professionals and, in some cases, new avenues for fraud and patient discrimination.

Some federal statutes address fraud in government health care programs, and many of these laws vary considerably (Krause 2004). Some of these laws specifically target health care fraud. Example of the laws that the government direct at inappropriate health care activities includes the “Medicare and Medicaid Anti-Kickback Statute and Ethics in Patient Referrals Act (EPRA).”

According to the Federal Bureau of Investigation (FBI) “health care fraud costs the country an estimated $80 billion dollars a year” ("Health Care Fraud," n.d., p. 1). Because health care costs continue to rise more rapidly than the rate of inflation the threat of health care fraud continues to rise. The Affordable Health Care Act has put new policies in place to identify and stop health care fraud. The FBI along with other government, insurance, and public agencies have joined together to combat fraud at every level. New rules in identifying, investigating, and prosecuting fraud before payments are made to medical providers could save billions of

Attempts to stop fraud were enhanced under Public Law 104-191, the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The purpose was to improve the Medicare program under title XVIII of the Social Security Act, the Medicaid program under title XIX of such Act, and the efficiency and effectiveness of the health care system. This public law encouraged the development of a health information system through standards and requirements for the electronic transmission of certain health information (aspe.hhs.go). The Act established a program to take action against fraud committed against public and private health plans. The legislation required the establishment of a national Health Care Fraud and Abuse Control Program (HCFAC), under the joint direction of the Attorney General and the Secretary of the Department of Health and Human Services (HHS) acting through the Department 's Inspector General (HHS.gov). The HCFAC program is designed to coordinate Federal, State and local law enforcement activities with respect to health care fraud and abuse. The Act requires HHS and Department of Justice (DOJ) detail in an Annual Report the amounts deposited and appropriated to the Medicare Trust Fund, and the source of such deposits. (HHS.gov) I will summarize the impact of these laws as it pertains to how they are impacting the healthcare delivery system. (HHS.gov)

Collectively, the Department of Health and Human Services and the Department of Justice work to reduce healthcare fraud and investigate dishonest providers and suppliers. The Health Care Fraud Prevention and Enforcement Action Team recouped almost 3 billion in fraud, this year alone. Also, aggressive strategies exist to eliminate Medicare prescription fraud. Patients abusing or selling painkillers received by visiting several doctors and obtaining multiple prescriptions costs Medicare millions annually. Fraud affects everyone, preventing it requires government officials and citizens diligently working together.

The Pharmaceutical lobbyist has a very powerful impact on the outcome of Medicare Part D. They were the ones that wrote the bill and presented it to the House and ultimately, it was passed. However, the tactics that were used were extremely questionable and unethical. A Democratic Representative from Michigan stated: “I can tell you when the bill passed, there were better than 1,000 pharmaceutical lobbyists working on this” (Singer, 2007). The

Although Congress has used several anti-fraud measures to protect the federal government health care programs, the False Claims Act of 1986 has become the main weapon that government prosecutors use against perpetrators of health care fraud. Designed to prevent fraud and other abuses in federal government programs, the False Claims Act has been the primary statute the government has used in its fight against health care fraud. However, government prosecutors do not rely on one statute in their prosecution of alleged cases of health care fraud. Instead, they rely on a combination of statutes, but the False Claims Act has emerged as the main statutory weapon.

Pursuant to sections 1128 and 1156 of the Social Security Act, the OIG has the authority to exclude individuals and entities from Federally funded health care programs, like Medicare and Medicaid. The paramount effect of exclusion is that payment is prohibited for items or services that an excluded individual or entity provides. This prohibition extends to anyone who chooses to employ or contract with an excluded individual or entity. Providers who violate this prohibition, are required to pay back any and all Federal funds inappropriately received and may also be subject to civil monetary penalties (“CMP”).

Insurance companies and the federal government should pool resources using a percentage of profits to finance a task force to arrestively fight fraud. The penalty for fraud should be more stringent which will cause perpetrators to think twice before formulating a plan to commit fraud. The Affordable Health Care Act is the beginning of many programs established to fight against fraud. Health care fraud is a growing problem and should be taken more seriously by citizens of the United States. Physicians, health care workers, and patients are responsible for