Remuneration Under the Anti-Kickback Statute Includes Intangible Economic Benefits

The Anti-Kickback Statute (“AKS”) prohibits anyone from:

“solicit[ing] or receiv[ing] any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind . . . in return for referring an individual to a person for the furnishing . . . of any item or service for which payment may be made in whole or in part under a Federal health care program.” 42 U.S.C. § 1320a-7b(b)(1)(A) (emphasis added).

The AKS also prohibits anyone from:

“offer[ing] or pay[ing] any remuneration (including any kickback, bribe or rebate) directly or indirectly, overtly or covertly, in cash or in kind . . . to refer an individual to a person for the furnishing . . . of any item or service for which payment may be made in whole or in part under a Federal health care program.” 42 U.S.C. § 1320a-7b(b)(2)(A) (emphasis added).

Remuneration Under the AKS Means Anything of Value, Regardless of Its Form

Remuneration is not limited to cash, credit arrangements, gifts, supplies, equipment, excessive rent payment or tangible items. In fact, Congress made changes to the AKS in 1977 to broaden the definition of remuneration so it was not construed narrowly to include only tangible items or explicitly monetary exchanges. See Social Security Amendments of 1972, Pub. L. No. 92-603, § 242, 86 Stat. 1329, 1419 (1972).

Revisiting the statute in 1977, Congress found that the narrow formulation of the 1972 version of the AKS proved ineffective to deal with “a disturbing degree [of] fraudulent and abusive practices associated with the provision of health services financed by the Medicare and Medicaid programs.” See H.R. Rep. No. 95-393, Pt. II, 95th Cong., 1st Sess. at 44, reprinted in 1977 U.S.C.C.A.N. 3039, 3047.

Congress was determined to prohibit fraud “in whatever form it is found” and amended the AKS to broaden its reach to include “any remuneration.” Medicare-Medicaid Anti-Fraud and Abuse Amendments, Pub. L. No. 95-142, 91 Stat. 1175, 1180 (1977).

As one of the principal sponsors of the amendments to the AKS explained, “the substance rather than simply the form of a transaction should be controlling.” HHS-OIG Rules and Regulations, Medicare and State Health Care Programs: Fraud and Abuse; OIG Anti-Kickback Provisions, 56 Fed.Reg. 35952, 35957 (citing 123 Cong. Rec. 30,280 (1977), Statement of Chairman of the House Committee on Ways and Means and principal author of H.R. 3 (the Medicare-Medicaid Anti-Fraud and Abuse Amendments), Rep. Rostenkowski) (emphasis added).

Indeed, In 1991, the Department of Health and Human Services (“HHS”), the federal agency charged with interpreting the AKS, see generally 42 U.S.C. § 1320a-7, noted that the inclusion of “remuneration” in the statute “demonstrate[s] congressional intent to create a very broadly worded prohibition,” and explained that “remuneration” under the AKS means “anything of value in any form or manner whatsoever.” See OIG Anti-Kickback Provisions, 56 Fed. Reg. at 35958 (emphasis added). Since then, HHS has repeatedly affirmed this broad scope of prohibited remuneration.

Since remuneration means “anything of value,” if it is pleaded that something has value, the plaintiff has pled remuneration sufficient to establish a violation of the AKS.

Remuneration Includes Intangible Economic Benefits

Remuneration includes intangible economic benefits, such as the opportunity to earn tangible money. Stated differently, the opportunity to bill for services that results in case revenues to providers is remuneration and violates the AKS.  See United States v. Bay State Ambulance and Hosp. Rental Serv., Inc., 874 F.2d 20, 29 (1st Cir. 1989) (“Giving a person an opportunity to earn money may well be an inducement to that person to channel potential Medicare payments toward a particular recipient.”); United States ex rel. Pogue v. Diabetes Treatment Ctrs. of America, 565 F. Supp. 2d 153, 162 (D.D.C. 2008) (Pogue III) (same); Polk County, Tex. v. Peters, 800 F. Supp. 1451, 1455 (E.D. Tex. 1992) (same); 42 U.S.C. § 1320a-7b(b) (prohibiting indirect as well as direct remuneration).

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