The Anti-Kickback Statute (AKS) protects healthcare beneficiaries from the influence of money in their medical decision-making. Overall, the AKS criminalizes renumeration “intended to induce patient referrals or influence the purchasing or ordering of items and services paid for by federal health care programs.
What is Renumeration?
Renumeration encompasses providing free items and services, rebates and discounts, and a share of profits, as well as payments for which no services were performed. Some examples of renumeration include direct payments of cash, bonuses, or loans. The severe penalties associated with these renumerations are a fine of no more than $100,000 per count and imprisonment of no more than 10 years.
Are there any Exceptions?
Healthcare providers should be on notice that not all arrangements with seemingly illegal renumerations constitute a violation of the AKS. AKS has ten such exceptions. For example, discounts in price obtained by a provider would not be penalized if disclosed and reflected in charges made by the provider under the federal health care program. Additional exceptions to AKS include payments made to W-2 employees in the course of employment, payments by a vendor of goods to a person authorized to act as a purchasing agent for a group of individuals or entities, and certain transactions that fall under the regulatory safe harbors.
Healthcare providers should become familiar with the safe harbors issued by the Office of the Inspector General (OIG). In 2020, the OIG issued revisions to the AKS safe harbors, qualifying which renumerations would not be subject to criminal penalties.
What are some of the Safe Harbors?
The local transformation safe harbor protects renumerations for providing local transportation to established patients for necessary medical appointments. The entity can transport a patient for 25 miles (75 if the patient lives in a rural area) and must have a written policy documenting the transportation. Furthermore, providers should note the Electronic Health Records Safe Harbor as well. This safe harbor protects non-monetary remuneration in the form of services such as software, information technology, and training services. The services must be necessary and used predominately to “create, maintain, transmit, receive, or protect electronic health records.”
Another important safe harbor to note is for space and equipment rental. Healthcare providers and entities should pay particular attention to this safe harbor because of the industry’s vast reliance on renting office space and equipment from third-party vendors. The requirements include that the lease or rental agreement be written and signed by both parties and that the agreement describes all of the premises or equipment rented. The terms of the agreement may not be for less than one year, with the rental charge set in advance and at fair market value.
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