Anti-kickback provision could threaten innocent providers

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A provision of the Affordable Care Act on kickbacks could snare innocent providers, panelists said at a recent American Health Lawyers Association conference. The new law considers any Medicare claim resulting from a violation of the anti-kickback law to be “false and fraudulent.” Attorneys addressed confusion about this provision at the recent AHLA conference in Baltimore. The lawyers discussed a 2011 ruling in a False Claims Act case against a medical device manufacturer, Blackstone Medical. The company was accused of paying kickbacks to physicians for using its products, and a court denied Blackstone's motion to dismiss even though physicians, not Blackstone itself, billed Medicare. The statute does not distinguish between “submitting and non-submitting entities,” the court stated. Blackstone argued this line of reasoning could expose innocent providers to False Claims Act charges, but the court said such concerns were “overblown.”

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