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.

For more information, see these publications in the TMA Education Center:      

See also the one-hour webinar Navigating the Perilous Waters of the False Claims Act From Medical Necessity to the Anti-Kickback Statute and Beyond.

 

Published April 9, 2013


 TMA Practice E-Tips main page