Anti-kickback provision could penalize innocent Medicare providers, attorneys say

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A provision of the Affordable Care Act on kickbacks could ensnare innocent providers, panelists said at a recent American Health Lawyers Association conference.

The ACA says any Medicare claim resulting from a violation of the anti-kickback law is “false and fraudulent.” Attorneys addressed confusion about this provision at the AHLA conference in Baltimore last Thursday.

The lawyers discussed a 2011 ruling in a False Claims Act case against a medical device manufacturer, Blackstone Medical, the Bureau of National Affairs reported. Blackstone 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 these concerns were “overblown.”

Panelist Timothy P. Blanchard, of Blanchard Manning LLP, said the ruling could mean providers would have to repay Medicare for deals involving kickbacks even if the providers do not know about the kickbacks because of where they occurred in the delivery chain, according to BNA. Jim Sheehan, chief integrity officer and executive deputy commissioner at the New York City Human Resources Administration, said the Centers for Medicare & Medicaid Services could issue regulations to clarify this matter.