The federal government is increasingly going after sober living homes for violations of the Anti-Kickback Statute and other federal fraud offenses. In particularly, the government is paying close attention to the relationships between sober living homes and the toxicology laboratories that they use to process their drug tests.
The growing scrutiny on sober living homes has revealed a prevalence among the facilities for receiving kickbacks from toxicology laboratories. Due to the high number of urine tests that they generate, sober living homes are valuable customers for toxicology laboratories. Therefore, some toxicology laboratories will offer kickbacks in the form of cash, gifts, discounts, free meals, or other benefits to the owners and operators of sober living homes in order to induce the sober living homes to direct their business toward that particular lab. Additionally, some toxicology laboratories will pay sober living homes a kickback per urine sample, which is intended to encourage the homes to order more tests than medically necessary in order to reap additional funds in kickbacks.
Criminal Penalties Under the Federal Anti-Kickback Statute
The health care industry is one of the most heavily regulated industries in America, and it has unique restrictions on kickbacks (payments for referrals). Unlike most industries, where marketers and business owners are encouraged to use incentives to draw in business, providing any remuneration in exchange for a referral is a felony offense within the health care industry pursuant to the federal Anti-Kickback Statute. As such, medical providers and business owners should take kickback investigations very seriously if they want to avoid criminal prosecution.
The federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)) prohibits any payment intended to influence either (i) the referral of a patient for an item or service reimbursed by a federal health care program or (ii) the purchase, lease, order, or arrangement for or recommendation to purchase, lease, or order any good, facility, service, or item which is reimbursed by a federal health care program.
One of the most critical elements of the Anti-Kickback Statute is the requirement of criminal intent. In order to prove a violation of the Anti-Kickback Statute, the prosecution must prove that the defendant knowingly and willfully made or received payments in exchange for referrals. Courts have adopted a very broad interpretation of the intent element, known as the “one purpose” rule. Under the one purpose rule, the Anti-Kickback Statute is violated if even just one of multiple purposes of an arrangement or deal is intended to induce referrals for items or services. See e.g., United States v. Greber, 760 F.2d 68, 72 (3d Cir. 1985), cert. denied, 474 U.S. 988 (1985).
The Anti-Kickback Statute includes very severe penalties for violating its terms. A person charged with violation of the Anti-Kickback Statute faces a sentence of up to five years in federal prison and criminal fines of up to $25,000 for each violation.
Choosing the Right Defense Counsel
Oberheiden, P.C. has an impeccable track record of achieving successful case outcomes for its clients. All of our senior attorneys rely on their in depth understanding of the health care industry and familiarity with all relevant rules and regulations to help our clients (1) avoid criminal charges through the use of proactive negotiations with the government, (2) transform criminal investigations into civil settlements, (3) identify health care law exceptions that can be used as defenses to the government’s prosecution, particularly in the context of Anti-Kickback Statute and Stark Law investigations, and (4) conclude cases with no civil or criminal liability for our clients.
Oberheiden, P.C. combines government insight, compelling negotiation and trial advocacy to develop unique and effective defensive strategies for each of our cases. Several of our attorneys formerly worked at the U.S. Attorney’s Office within the Department of Justice. As former federal prosecutors and respected health care fraud defense attorneys, our team of lawyers utilize their combined experience of hundreds of health care fraud investigations to benefit our clients.
Whom at Oberheiden, P.C. Should You Contact to Get a Free Consultation?
Oberheiden, P.C. serves clients throughout the United States. Our attorneys include the former chief for health care fraud at the U.S. Attorney’s Office, former Assistant United States Attorneys (AUSA), former Special Assistant United States Attorneys (SAUSA), former Department of Justice Trial Attorneys, the former Deputy Chief of the Trial Section at the U.S. Attorney’s Office, and other nationally renowned lawyers. When it comes to defending yourself against the federal government, your attorney’s experience matters, and Oberheiden, P.C. has the knowledge and experience to find solutions for your situation. If you suspect that you or your business is under federal investigation for health care fraud, contact one of our senior attorneys today for a free and confidential consultation.
- Nick Oberheiden has years of health care fraud defense experience, and has successfully defended doctors, pharmacies, laboratories, and health care business owners and executives against allegations of fraud, false claims, kickbacks, and prescription fraud, brought by the DOJ, OIG, CMS, IRS, FBI, DEA, DOD (Department of Defense), and other federal agencies. Dr. Oberheiden is trained in negotiations by Harvard Law School, and he received his Juris Doctor from UCLA School of Law as well as a PhD in law.
- Lynette S. Byrd is a former Assistant United States Attorney (AUSA). Clients greatly benefit from Lynette’s experience from the Department of Justice, where she prosecuted health care fraud, Anti-Kickback violations, False Claims Act, and Stark violations on behalf of the United States. Lynette has immense experience with health care law enforcement and she regularly argues federal matters for her clients.
At Oberheiden, P.C., we appreciate the importance of each matter and we dedicate our fullest attention to each client. Contact one of our senior attorneys to discuss your concerns in a free and confidential consultation, seven days a week, including on weekends.
Compliance – Litigation – Defense
Dr. Nick Oberheiden has successfully represented healthcare executives and physicians – as well as businesses in the areas of toxicology, pharmacy, home health and hospice centers, DME, hospitals, surgery centers, neuro-monitoring, and blood and DNA testing centers – in healthcare compliance and defense.