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

       

Prohibition  

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  

Referrals from anyone

 

Referrals from a physician

       

Items/Services  

Any items or services

 

Designated health services

       

Intent  

Intent must be proven (knowing and willful)

 

No intent standard for overpayment (strict liability)

Intent required for civil monetary penalties for knowing violations

Penalties  

Criminal:

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

Civil/Administrative:

  • 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
 
 

Civil:

  • 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

 

Exceptions  

 Voluntary safe harbors

 

 Mandatory exceptions

 

All

 

Medicare/Medicaid

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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