Final Rule Adds and Modifies Anti-Kickback Safe Harbors

9 Jan 2017
Mark Josephs

Last month, the Department of Health and Human Services Office of Inspector General (OIG) published a Final Rule that added certain safe harbors to Anti-Kickback regulations and modified other safe harbors already in existence.  The Anti-Kickback statute, Section 1128B(b) of the Social Security Act, imposes criminal penalties against individuals and entities that knowingly and willfully pay or offer compensation in order to induce or reward the referral of health services reimbursable under Federal health care programs.

Congress and the agency have realized that certain types of financial arrangements that otherwise would create liability under the statute do not present the risk of fraud and abuse and, indeed, may increase efficiencies.  Safe harbors were therefore added to the Anti-Kickback statute and regulations.  As the scope of the myriad financial arrangements among health entities has only increased, the agency has tried to respond by clarifying and adding the types of activities that should not and will not expose the involved health care providers to liability.  In this case, the added safe harbors address certain cost-sharing arrangements and discounted health services.

The still-evolving safe harbor program within the Anti-Kickback statutory and regulatory structure is an excellent example of a government agency attempting to adjust to current business conditions.

The Law Office of Mark L. Josephs LLC has the expertise to advise health care provider entities and individuals regarding whether their existing or proposed business relationships present Anti-Kickback risks.  Key to the excellence of these services are the valuable contacts the Office has with OIG senior counsel, whom the Office can contact to assist in the evaluation of a particular client’s circumstances.

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