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How To Write A Qui Tam Complaint: A Tutorial Series

Article #9 The Federal Anti Kickback Statute Law Section

Posted on Sunday, December 23, 2012, 05:09:46 PM Eastern Time USA by JOSEPH J. PAPPACODA, ESQ..




In your Medicare False Claims Act Complaint you may have specific fraud allegations related to Anti-Kickback Statute Law Violations. If you have prohibited patient referral kickbacks in your case, chances are good that you also have Stark Law Violations in your case, as these two law violations are closely related in practice by Qui Tam defendants.

The Anti-Kickback Law Section of the Qui Tam Complaint may look something like this (Section numbers and paragraph numbers should be tailored to fit your Complaint):

"XV. THE ANTI-KICKBACK STATUTE

33. The Anti-Kickback Statute [aka “AKS”], makes it a felony to knowingly and willfully offer, pay, solicit, or receive any remuneration in return for: (i) referring an individual for any service paid in whole or in part under a federally funded health care program, or (ii) 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. 42 U.S.C. § 1320a-7b(b) (2012). The AKS attaches criminal liability both to the person paying the kickback and to the person receiving the kickback. See United States ex rel. Thompson v. Columbia/Healthcare Corp., 125 F.3d 899, 901 (5th Cir. 1997) (Anti-Kickback Statute “prohibits (1) the solicitation or receipt of remuneration in return for referrals of Medicare patients, and (2) the offer or payment of remuneration to induce such referrals.”). Federal AKS governs Florida Medicaid. State v. Harden, 938 So.2d 480 (Fla. 2006) (Holding that the 'anti-kickback' provision of Florida's Medicaid fraud statute was preempted by federal law).

34. The Anti-Kickback Statute was enacted to protect patients and federally-sponsored healthcare programs, such as Medicare and Medicaid, from fraud and abuse by curtailing the corrupting influence of money on healthcare decisions. The primary purpose of the statute is to prevent kick-backs or payoffs to those who can influence healthcare decisions. In this regard, the statute removes potential economic incentives that could influence healthcare providers to refer or recommend medical goods and services that are medically inappropriate, medically unnecessary, of poor quality, or even harmful to a patient population.

35. Compliance with the Anti-Kickback Statute is a precondition to participation as a healthcare provider under the Medicare, Medicaid, CHAMPUS/TRICARE, CHAMPVA, Federal Employee Health Benefit Program, and other federal healthcare programs. Accordingly, participating healthcare providers must Certify that they have complied with the Anti-Kickback statute, in addition to other applicable laws, rules and regulations.

36. The Stark Law compliments the Anti-Kickback Statute. The Stark Law and the Anti-Kickback Statute refer to one another, and make compliance with one a requirement of compliance with the other. Both are intended to prevent healthcare providers from taking actions for the purpose of financial benefit to themselves, as opposed to providing medically necessary services to patients.

37. All federal healthcare program patient referrals therefore fall into one of four categories, to wit: 1.) authorized by law; 2.) violation of the Stark Law; 3.) violation of the Anti-Kickback Statute; or 4.) violation of both the Stark Law and Anti-Kickback Statute."

For further information on the False Claims Act, or your specific Quitam case, please contact Attorney Joe Pappacoda directly at 954-560-2616, or use the link found at USFraudCases.com.

Copyright 2012 Law Offices Of Joseph J. Pappacoda, Fort Lauderdale, Florida 33301.


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