DOJ Intensifies Anti-Kickback Statute Enforcement on Telehealth Referral and Marketing Arrangements

Understanding the Anti-Kickback Statute (AKS)

The Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)) is a cornerstone of federal healthcare fraud and abuse laws. It prohibits knowingly and willfully offering, paying, soliciting, or receiving any remuneration—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 healthcare program. Violations of the AKS can result in severe penalties, including criminal fines, imprisonment, civil monetary penalties, and exclusion from participation in federal healthcare programs.

The statute is intentionally broad to cover various schemes designed to induce referrals. The intent requirement means that the government must prove that the defendant acted with the knowledge that the conduct was unlawful. However, courts have often held that if one purpose of the remuneration was to induce referrals, the statute is violated, even if there were other legitimate purposes. This