Impact of the Anti-Kickback Statute: Insights from Whistleblower Lead Counsel and a Case Defendant

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The Anti-Kickback StatutePerspectives from a
Whistleblower Lead Counsel and an Anti-Kickback
Case Defendant
Presented By William Mack Copeland, MS, JD, PhD,
LFACHE and Barry Weinbaum

• Copeland Law, LLC

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Objectives

• To provide an overview of the Anti-Kickback
  Statute, its elements, what it prohibits, and how
  it works
• To review United States v. Weinbaum by the
  defendant in the case.

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FEDERAL ANTI-KICKBACK STATUTE

• The Statute prohibits the offer or payment, as
  well as the solicitation or receipt, of "any
  remuneration (including any kickbacks, bribe, or
  rebate)" in exchange for referrals.
• Two-way street both the payer and the receiver
  equally culpable.

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ANTI-KICKBACK EXCEPTIONS

• A discount or price reduction to the provider
  that is properly disclosed and appropriately
  reflected in costs claimed by the provider
• Payments by an employer to a bona fide employee
  
• Group purchase arrangements and
• The safe harbors.

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The Medicare and Medicaid Patient and Program
Protection Act of 1987

• It may be viewed as an effort to respond to the
  concerns of health care providers that many
  relatively innocuous, or even beneficial,
  commercial arrangements are technically within
  the statutes scope and hence may be subject to
  criminal prosecution.

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Safe Harbors Recurring Themes

• Not based on referrals.
• Fair Market Value.
• Written Agreement.
• No less than one year.

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United States v. Weinbaum

• Brief Background
• Alvarado Hospital Medical Center
• 311-bed hospital
• East San Diego County
• Relocation agreements
• 99 agreements in 10 years (1992 to 2002)
• Father of Case Dr. Paul ver Hoeve
• Medicare fraud for over-billing
• Brought kickback allegations in exchange for
  leniency

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Lessons Learned

• How Can You Be Accused of Breaking the Law When
  You Believe What You Were Doing Was Legal?

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Advice Recommendations

• Documentation
• Material disclosure of facts and attorney/client
  interaction-documenting emails, phone
  conversations
• Its OK to make mistakes- Not against the law
• Documenting corrective action
• Transparency of files/witness tampering/obstructio
  n of justice
• NEVER SHRED DOCUMENTS

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Advice and Recommendations

• Do you do business with people who demonstrate
  integrity and who you can trust?
• Does your GB and MEC endorse and review hospital
  financial arrangements with physicians?
• Sticking out in the community with your business
  practices. Can your intent be questioned?
• Violating your own policy and procedure

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Advice and Recommendations

• Management staff and Organization
• Delegating/Who is doing what?
• Being a precise communicator
• Being a good listener and observer and looking
  for red flags
• Disgruntled physicians and Qui-Tam Act
• Staying focused-Relocation agreements were 1 of
  my time but 100 of my exposure!!

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RECOMMENDATIONS

• Develop a good compliance program that is a
  living document.
• Periodically conduct internal audits of billing
  and payment practices.
• Review all contracts with physicians and other
  providers, paying close attention to contracts
  with entities in a position to refer.
• Develop a training program to teach compliance to
  employees and contracted personnel.
• Understand and comply with the law and
  regulations.
• Create a culture of compliance strongly supported
  by top management.
• Maintain quality of care.

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CONCLUSION

• Healthcare fraud and abuse laws are very
  complicated and complex.
• Nevertheless, you are responsible for
  compliance.
• Get good advice.
• Risks cannot be eliminated, but they can be
  mitigated.

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Questions
If there are any further questions we could not
answer today, please feel free to contact us by
calling. 513-290-2458 (Copeland)or email at
wmc_at_copeland-law-llc.com [phone]
(Weinbaum) or email at Weinbaumbarry_at_gmail.com
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