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Violation of the Anti-Kickback Statute (AKS)
Dr. Kamal Patel, a Chicago-area physician who commonly prescribed home health care services for his patients, was recently convicted, following a bench trial, of violating the Anti-Kickback Statute (AKS), 42 U.S.C. ' 1320a-7b, and also for conspiring with a home health care provider to break that same law. Dr. Patel was sentenced to eight months in prison and 200 hours of community service, and he was also ordered to forfeit $31,900 in payments that he received from the provider. He appealed, but in United States v. Patel, No. 14-cv-2607 (7th Cir. Feb. 10, 2015), the United States Court of Appeals for the Seventh Circuit affirmed his criminal convictions, holding that merely “authorizing” medically necessary services can constitute illegally “referring” patients under the AKS, if improper payments are made to the authorizing doctor.
Put simply, the AKS prohibits, among other things, paying or getting paid for “referring” patients for health care services that are paid for, in whole or part, by any federal program, such as Medicare or Medicaid. The relevant part of the statute reads:
Whoever knowingly and willfully solicits or receives any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind'in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program ' shall be guilty of a felony and upon conviction thereof, shall be fined not more than $25,000 or imprisoned for not more than five years, or both.
The prosecution against Dr. Patel for receiving kickbacks, and the appeal from his convictions under the AKS, begged the following question: What does it mean for doctors to “refer” patients for home healthcare services? The AKS does not explicitly say, because the law does not define the key term “refer.”
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