Antikickback Versus Stark: A Comparison

The Centers for Medicare & Medicaid Services has begun ratcheting up enforcement in regard to billing and financial relationships. Among the laws implicated are the antikickback statute and the Stark law.

Here is a quick look at the difference between these sometime confusing laws. 



The Antikickback Statute
42 USC § 1320a-7b(b)


The Stark Law  
42 USC § 1395nn



Prohibits offering, paying, soliciting or receiving anything of value to induce or reward referrals or generate federal health care program business


Prohibits a physician from referring Medicare patients for designated health services to an entity with which the physician (or immediate family member) has a financial relationship, unless an exception applies

Prohibits the designated health services entity from submitting claims to Medicare for those services resulting from a prohibited referral



Referrals from anyone


Referrals from a physician



Any items or services


Designated health services



Intent must be proven (knowing and willful)


No intent standard for overpayment (strict liability)

Intent required for civil monetary penalties for knowing violations



  • Fines up to $25,000 per violation
  • Up to a five-year prison term per violation


  • False Claims Act liability
  • Civil monetary penalties (CMPs) and program exclusion
  • Potential $50,000 CMP per violation
  • Civil assessment of up to three times amount of kickback


  • Overpayment/refund obligation
  • False Claims Act liability
  • CMPs and program exclusion for knowing violations
  • Potential $15,000 CMP for each service
  • Civil assessment of up to three times the amount claimed



 Voluntary safe harbors


 Mandatory exceptions





Source: U.S. Health and Human Services Office of Inspector General. Visit the OIG website for additional quick-reference materials relating to health care fraud and abuse.

Help from TMA:       

  • For a one-hour overview, tune in to our new live webinar, Avoiding Fraud and Abuse, Thursday, April 25, 2013, 6-7 pm (Central). Attorney Amanda Hill will explain the hot areas that are subject to audits, the importance of documentation and frequent self-audits, and how to develop and maintain a plan that will keep you in compliance.
  • For more in-depth information, read Fraud and Abuse by Amanda Hill. This guide goes into detail on the laws and penalties associated with health care fraud and abuse.

 Both are available through the TMA Education Center and offer continuing medical education credit.

Published April 9, 2013 

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