By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health LawThe federal Anti-Kickback Statute prohibits remuneration in relation to the provision of a “good, facility, service, or item for which payment may be made in whole or in part under a Federal health care program.” 42 U.S.C. § 1320a-7b(b). The Anti-Kickback Statute goes on to define “federal health care program” as any government-funded plan or program that provides health benefits or any state health care program. 42 U.S.C. § 1320a-7b(f). But exactly which payers are considered Federal health care programs? There is a lot of confusion on this issue. Hopefully, this will clarify it.
The List of Federal Payers for To Which the Anti-Kickback Statute Applies.
The list of federal and state programs to which the Anti-Kickback Statute applies is a long one. The state ones are on there primarily because they receive some level of federal funding. This list includes many programs, some of which you may have never heard or guessed. Here are the ones of which I am aware:
The Medicare Program (along with managed care plans that may contract with the Medicare Program, a number of private insurers);
The Medicaid Program (along with managed care plans that may contract with the various state Medicaid Programs-the private insurers which do this);
State Children’s Health Insurance Program (CHIP or SCHIP);
TRICARE and Tricare for Life;
CHAMPVA;
Veterans Administration (VA) Services;
Indian Health Services (IHS);
Federal Health Program for Alaska Natives;
Railroad Employees National Health and Welfare Plan (RENHWP);
Federal Employees’ Compensation Act (FECA) program;
The Longshore and Harbor Workers’ Compensation Act (LHWCA);
The Federal Black Lung Benefits Act program (FBLBA);
The Energy Employees Occupational Illness Compensation Program Act (EEOIC) (also known as the “Beryllium Exposure Compensation Act”) program;
Refugee Medical Assistance (RMA) program;
Federal Reimbursement of Emergency Health Services to Undocumented Aliens program; and
The Ryan White HIV/AIDS Program.
These programs cover a very wide swath of all health services offered in the United States. Therefore, nearly every medical item, facility, service, or equipment is potentially payable by a federal health care program.
Note, however, the Federal Employee Health Benefit (FEHB) Program, the program that provides insurance and benefits to federal civilian employees, is not included in the above list of payers, by statutory exemption. 42 U.S.C. § 1320a-7b(f); 5 U.S.C. Ch. 89.
The Public Health Service (PHS) and its programs may also be excluded from the application. See 42 U.S.C. § 1320a-7b(b)(3)(D).
Cross-over with the False Claims Act.
Compliance with the Anti-Kickback Statute is a Condition of Payment for federal health care programs. Every claim that is submitted for payment contains an attestation that the provider providing the goods or services for which payment is sought has complied with the federal Conditions of Payment.” Therefore, if there has been a kickback in relation to such goods or services for which a claim is made, the False Claims Act will also apply.
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About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.
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