Kickbacks and Commercial Bribery: Another Touchstone to Consider

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The latest indictment confirms that fraud and abuse analysis is about more than just the federal and state healthcare anti-kickback statutes.

The U.S. Attorney for the Northern District of New Jersey has just charged the 26th doctor and 39th person for accepting bribes from Biodiagnostic Laboratory Services in exchange for the wrongful referral of federal healthcare program patients. The 10-count indictment charges Dr. Bernard Greenspan, a family physician, with one count of conspiring to commit violations of the anti-kickback statute and the federal Travel Act and wire fraud. Allegations include that Dr. Greenspan had taken $200,000 in bribes over a period of years in exchange for referring patient blood tests to a Biodiagnostic lab.

The federal Travel Act seems like an odd statute to violate in connection with a Medicare lab fraud case. But upon a deeper dive, the U.S. Attorney’s logic can be seen and confirms that fraud and abuse analysis is about more than just the federal and state healthcare anti-kickback statutes. The indictment alleges that Dr. Greenspan knowingly and intentionally traveled in interstate commerce and used the mail and facilities in interstate commerce to promote and manage an unlawful activity and distribute the proceeds of the activity.

The Travel Act prohibits a person from traveling in interstate commerce, or using the mail or any facility in interstate commerce, with intent to promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on of any unlawful activity or distribute the proceeds thereof. Unlawful activity includes bribery in violation of applicable state or federal laws. The U.S. Attorney alleged that Dr. Greenspan violated the New Jersey commercial bribery statute and as a result violated the federal Travel Act, 18 U.S.C. § 1952. A violation of the Travel Act carries a maximum sentence of five years in prison for commercial bribery as well as fines, in addition to any penalty that may be imposed for a separate violation of the anti-kickback statute.

Like similar state statutes, the New Jersey Commercial bribery statute prohibits a person from soliciting, giving or accepting, or agreeing to give or accept any benefit as consideration for knowingly violating or agreeing to violate a duty of fidelity to which he is subject, including as (1) an agent, partner or employee of another; (2) a physician or other professional adviser; or (3) an officer, director, manager or other participant in the direction of the affairs of an incorporated or unincorporated association. N.J.S.A. 2C:21-10. In this case, it is alleged that Dr. Greenspan accepted payments from Biodiagnostic Laboratory Services as consideration for knowingly violating or agreeing to violate his fiduciary duty to his patients as a physician. In essence, he impermissibly put his financial interests above the interests of his patients when he accepted the payments from Biodiagnostic Laboratory Services that were allegedly made to influence his conduct in relation to his patients’ laboratory referrals.

Consequently, even though an arrangement with a physician or other provider with a fiduciary duty to a patient may satisfy an exception under the federal anti-kickback statute, it is important to consider whether the arrangement complies with state commercial bribery laws. In most cases, compliance under commercial bribery laws can be achieved through proper disclosure to the patient.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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