Antikickback+Statute

Carole Wells Compendium Presentation 11/22/12

**The Antikickback Statute **

The False Claims Act (31 U.S.C. Sections 3729-33) allows an individual or "whistleblower", with knowledge of fraud towards federal government, to sue on behalf of the government to recover penalties and damages. This Act was put into place in 1863 by President Abraham Lincoln (False Claims Act). Up until the creation of the antikickback statute of the Social Security Act, the False Claims Act was the only act which was used as a means for protecting the government from fraud. Over the course of history, many amendments have been made to the original False Claims Act, but its attempts at protecting the governmental system and its people led way for the creation of the antikickback statute. Both the False Claims Act and Antikickback Statute are still used today.
 * History **

By 1977, there were many cases in which health care fraud occurred. Amendments were then made again at this time to make the crime a felony and punishable by a fine of $25,000 and/or up to five years in prison. By 1987, the act was changed again. By this time, protection was applied to both Medicare and Medicare in the same way. Up until 1987, Medicare and Medicaid had separate antikickback statutes (Kusserow, 1992).

The antikickback statute promotes social justice, in addition to protecting the most vulnerable populations made up of elderly, poor, and disabled persons.

**Description ** In 1965, Medicare and Medicaid programs were created to assist in providing healthcare services for the elderly, disabled, and poor. Medicare is a federally funded program, while Medicaid is both federally and state funded program. Medicare and Medicaid are used to provide funding to physicians and facilities for services provided (Medicare and Medicaid, 2012). By 1972, health care providers had discovered that the more patients they see, the more funding they would receive. Patients were lured to medical practices via bribery and then encouraged to be seen by certain physicians.

What is a kickback?


 * The actions (bribes) of the physicians became known as kickbacks.


 * Examples of kickbacks include:
 * individuals obtaining subsidized or fully-covered prescription pills that are actually unneeded and then selling them on the black market for a profit
 * billing by practitioners for care that they never rendered
 * filing duplicate claims for the same service rendered; altering the dates, description of services, or identities of members or providers
 * billing for a non-covered service as a covered service
 * modifying medical records
 * intentional incorrect reporting of diagnoses or procedures to maximize payment
 * use of unlicensed staff
 * <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">accepting or giving kickbacks for member referrals
 * <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">waiving member co-pays
 * <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">prescribing additional or unnecessary treatment.

<span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">The anti-kickback statute was put in place in 1972, as a part of the Social Security Act, to protect both Medicare and Medicare against fraud.

Are physicians the only ones who can commit healthcare fraud?
 * No. <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">Citizens can commit health care fraud by providing false information when applying for programs or services, forging or selling prescription drugs, using transportation benefits for non-medical related purposes, and loaning or using another’s insurance card (Cornell, 2012).”

<span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">The //primary purpose// of the antikickback statute is to //protect patients from unnecessary services, referrals by a physician, or selection of a physician or facility because of a bribe (kickback).// In addition, protection is provided federally which lowers the risk of Medicare fund depletion.

<span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">The antikickback statute has always played a key role in society, but its function has become increasingly important as the economy in the United States continues to decline, which lessens the amount of money available to fund programs such as Medicare and Medicare.

<span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">With the passage of the Patient Protection and Affordable Care Act in 2010, there was an increase in the discussion of the future of Medicare. A proposed $575 billion budget cut over a ten year window was included in legislation (Kaplan, 2012). Medicaid budget cuts are also an area of concern, which further substantiates the efforts to reduce fraud and unnecessary spending. For Medicare and Medicaid to remain stable and continue to thrive and exist for years to come, it is important that they are not abused or misused and efforts to reduce fraud should continue. This is especially essential for the generations who expect to retire within the next ten to forty years.

<span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">The anti-kickback statute makes it a criminal offense <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;"> to “knowingly and willfully offer, pay, solicit, or receive renumeration in exchange for the referral of business covered under Medicare, Medicaid, or other programs (Kusserow, 1992).” The term renumeration, as mentioned in the statute, means to be paid for services rendered.

<span style="font-family: 'segoe ui light','sans-serif'; font-size: 16px;">The original 1972 act read:

<span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">Here is the act as it is today: <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;"> <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">Even with the current laws in place to prevent governmental fraud, an estimated $80 billion is spent by the United States each year due to healthcare fraud alone (FBI, 2012). In May 2009, in an effort to reduce healthcare fraud, the United States Department of Justice partnered with the United States Department of Health and Human Services to create the Health Care Fraud Prevention and Enforcement Action Team (HEAT). The Centers for Medicare and Medicaid Services (CMS) created the Fraud Prevention Initiative, also known as the Health Care Fraud and Abuse Control Program (HCFAC), which partners with HEAT and together they work to prevent healthcare fraud.

<span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">For more information on HEAT visit: [] <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">For more information on HCFAC visit: []

**<span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">Governing Laws and Policies ** <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">In order to reduce the number of liabilites on physicians and confusion about what constitutes renumerations, as described in the antikickback statute, Congress directed the United States Health and Human Services department(HHS) to put in place its own regulations that would make certain behaviors exempt from antikickback liabilites. The behaviors that are allowed to be in place are known as "safe harbors." Each safe harbor provides immunity from prescution for behavior, which without the safe harbor,might have violated the statute.

<span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">Safe harbors included are:
 * <span style="display: block; font-family: 'segoe ui light','sans-serif'; font-size: 16px; text-align: left;">investment interests
 * <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">space rental
 * <span style="display: block; font-family: 'segoe ui light','sans-serif'; font-size: 16px; text-align: left;">equiptment rental
 * personal services and management contracts
 * sale of practice
 * referral services
 * warranties
 * employee discounts
 * group purchasing organizations(GPO's)
 * waiver for beneficiary coinsurance and deductible amounts for Part A inpatient hospital services and certain federally funded health centers and health care facilites
 * joint ventures in underserved areas
 * practitioner recruitment
 * <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">obstetrical malpractice insurance for underserved areas
 * <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">sale of physician practices to hospitals in underserved areas
 * <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">investments in ambulatory surgical centers
 * <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">investments in group practices
 * <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">referral arrangements for speciality services
 * <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">cooperative hospital service organizations

<span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">After the safe harbors were put in place, the United States Office of the Inspector General became concerned that the antikickback prohibitions (safe harbors) were only hiding and covering cases of fraud and abuse in the health care industry and specifically not preventing physician referrals to entities in which the physician had money vested. For this reason, United States Representative Pete Stark introduced the “Ethics in Patient Referrals Act” on February 9, 1989, This became law in 1992 and is known as the Stark Law, which is contained in Section 1877 of the Social Security Act.
 * <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">The Stark Law specifically limits referral of Medicare patients “to entities furnishing clinical laboratory services in which the physician (or his/her immediate family members) have a relationship (Perry, 2010).



[]

<span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">The Hanslester Network vs. Shalala (1995)
 * <span style="display: block; font-family: 'segoe ui light','sans-serif'; font-size: 16px; text-align: left;">The wording of the antikickback statute was questioned, with specific focus on the phrase “knowingly and willfully.”
 * <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">The court held the position that in order for one to violate the law “knowingly and willfully” there must be intent.
 * <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">The court ruled that in order for a defendant to “knowingly and willfully” commit an act that disobeyed the statute, it was required that the defendant “(1) knew the conduct was prohibited by the statute; and (2) acted with specific intent to violate the law (Lonian, 1996).”

<span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">Section 6402(f)(2) of the PPACA(Patient Protection Affordable Care Act) // reversed // the decision in the Hanslester versus Shalala case and <span style="color: #c0504d; font-family: 'segoe ui light','sans-serif'; font-size: 16px;">it is now no longer necessary for prosecutors to prove specific intent <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;"> in violations of the antikickback statute.

<span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">**There have been many court cases that have challenged the wording of the statute. Much ambiguity exists as to what the statute actually means.**

**<span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">International Comparison ** <span style="font-family: 'segoe ui light','sans-serif'; font-size: 16px;">The United States health care system is unlike any other health care system in the world. The search for international comparison of the antikickback statute was difficult. No other country in the world has a healthcare system (or faces problems) like the United States.

<span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">The United States and Australia both have Medicare systems in place (although is there is a vast difference that exists between the two) and in order to protect against fraud against the system, policies were created to protect it.


 * <span style="font-family: 'Segoe UI Light','sans-serif';">United States **
 * <span style="font-family: 'Segoe UI Light','sans-serif';">Medicare in the United States provides health insurance for people who are age sixty five and older, people who are under age sixty five and disabled, and people of any age with End Stage Renal Disease (ESRD). Medicaid in the United States is a system put in place to provide healthcare coverage to people and families who have limited income and resources, but there is some overlap between Medicare and Medicaid coverage (Medicare). Strict guidelines exist for both. Medicare and Medicaid in the United States are funded through taxes paid by the entire population. Funds are allocated and distributed by government officials. It was not until Patient Protection and Affordable Care Act (Obamacare) laws were enacted that changes started occurring in regards to whether high income earners would pay increased taxes to cover health care costs. Two new laws will take effect in 2013: incremental 0.9% Medicare taxes on wages above $250,000 per year and a tax on unearned income, which includes dividends and annuities (Maye, 2012).
 * <span style="font-family: 'Segoe UI Light','sans-serif';">Australia **


 * <span style="font-family: 'Segoe UI Light','sans-serif';">Medicare in Australia is the universal health care system in place that provides coverage for all of its citizens regardless of age, disability, income, or access to resources. Everyone is eligible for coverage and strict guidelines do not exist, except for those regarding residency within the country. Medicare in Australia is funded and run by the government, which receives funding from taxpayers via levies and surcharges. All taxpayers pay a levy, but citizens with higher incomes pay additional taxes. “The Medicare Levy Surcharge is an extra levy paid by Australian taxpayers who don’t have Private Hospital Cover and are considered by Government to be high income earners. The Medicare Levy Surcharge currently applies to those who do not have private hospital cover and who earn above $77,000 for individuals and $154,000 for couples or families, increasing by $1,500 for each additional child after the first. The surcharge is calculated at the rate of 1% of taxable income (Medicare Levy).”
 * <span style="font-family: 'Segoe UI Light','sans-serif';">In order to protect against healthcare fraud in Australia, with specific focus on pathology services and diagnostic imaging, an amendment was made to the Australian Health Insurance Act of 1973. The amendment which references healthcare fraud is known as Part IIBA.
 * <span style="font-family: 'Segoe UI Light','sans-serif';">Part IIBA was designed to prevent physicians from selecting certain agencies to refer patients to(for pathology or diagnostic services) due to the reward or monetary amount that they would get in return for the initial referral.

**<span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">Significance to Social Work ** <span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">Not only is it important for physicians and staff to be ethical in practice, but it is also important that social workers remain ethical, honest, and truthful as well. As the number of health care fraud cases in the United States increases, the role of advocacy and protection of clients becomes very important.

<span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">Social workers should keep in mind at all times the values and standards of the profession and use them as guiding principles in making decisions in the policy area. By using them as guiding principles, there is a sense of accountability. Social workers, in addition to the common citizen, are asked to be the eyes and ears of the federal government and report cases of healthcare fraud. Just as social workers have a duty to report any form of physical abuse, social workers also have a duty to report healthcare fraud/abuse.

<span style="font-family: 'Segoe UI Light','sans-serif'; font-size: 16px;">If social workers in the health care setting are not familiar with antifraud laws, such as the antikickback statute, they cannot ensure their patients that they (or the other health care professionals) are working within the limits of the law and doing what is only essential and necessary for their care.

<span style="font-family: 'Times New Roman','serif'; font-size: 16px;">References

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