The federal government takes a close look at the financial relationships behind health care referrals. An Anti-Kickback Statute (AKS) defense lawyer represents providers when a compensation arrangement, however routine it appeared at the time, becomes the focus of a government investigation.
Not every arrangement that draws scrutiny was designed to do anything wrong. A financial and health care compliance defense lawyer helps providers demonstrate that distinction before the government’s version of events becomes the one on record.
At Bertolino LLP, we have defended Texas professionals for over 20 years and represented thousands of licensed providers across the state. We stand by you. Reach out to our Client Success Liaison to schedule a complimentary consultation.
What the Anti-Kickback Statute Actually Reaches
Our Texas civil malpractice defense lawyers see it regularly: a civil dispute over a business arrangement opens the door to a federal inquiry over the same relationship. A compensation arrangement that seemed unremarkable for years can look different once federal investigators start asking questions.
Federal law under the Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)) prohibits offering, paying, soliciting, or receiving anything of value to induce or reward referrals covered by federal health care programs. A medical directorship or consulting agreement can each fall within that prohibition, depending on how the arrangement was structured.
The compensation agreement and fair market value support that existed when the relationship was formed are what a federal investigation will focus on. A provider’s explanation of intent has far less influence on that review than the documents themselves do.
The Arrangements That Draw Federal Attention
Certain compensation relationships draw federal attention because of their structure. When payment terms appear connected to referral volume rather than the value of services provided, investigators take a closer look at the arrangement.
The arrangements that surface most frequently in AKS investigations include:
- Medical directorship agreements where compensation appears disconnected from actual duties performed.
- Consulting and speaking fees paid to high-volume prescribers by pharmaceutical or device companies.
- Below-market office space or equipment leases are provided to physicians who refer patients to the lessor.
- Co-investment arrangements in facilities where returns appear tied to referral volume.
- Incentive compensation formulas that reward employees based on the volume of referrals generated.
Federal investigators examine the pattern and arrangement that develops over time. Compensation that holds up on its own terms, independent of any referral relationship, is what distinguishes a defensible structure from one that requires a harder conversation with the government.
What Happens After a Complaint Is Filed
A qui tam complaint filed under seal is how many AKS investigations begin. A former employee, a business partner, or a competitor files with the government, and federal attorneys spend months reviewing the arrangement before the provider receives any notice.
The government then evaluates whether to intervene by taking over the case or to step back and let the whistleblower pursue it independently. A government declination does not end the matter, and the case can proceed either way.
That decision process is why early preparation changes the outcome. A defense built around what the government already has is more effective than one built around how the arrangement was intended to work.
How Our Anti-Kickback Statute (AKS) Defense Attorneys Build the Defense
The Anti-Kickback Statute includes regulatory safe harbors, and finding the one that fits the arrangement is where our work begins. A safe harbor that fits and is supported by the documentation that existed at the time may reduce or defeat AKS exposure before the matter reaches litigation.
The compensation agreement, as it existed at the time of the arrangement, is what our AKS defense attorneys examine first. What the contract required, what services were actually performed, and what fair market value support the parties documented are what the defense gets built around.
Whether the Anti-Kickback Statute governs a specific arrangement depends on the structure of the relationship, the services the arrangement requires, and how compensation was calculated. We examine that question before anything else.
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What Must the Government Prove
The Anti-Kickback Statute demands proof of knowing and willful conduct. A party must have offered, paid, solicited, or received remuneration specifically to induce or reward referrals, and a defense that speaks to purpose and structure from the record can address that standard head-on.
Federal courts have applied what is known as the one-purpose rule, under which an arrangement violates the statute if inducing referrals was even one purpose behind the remuneration. That standard places the structure and documentation of the arrangement at the center of the defense.
Our AKS defense attorneys examine the record for evidence that the compensation served a legitimate business purpose independent of any referral relationship. When that evidence exists and is well documented, it changes the trajectory of the case.
How False Claims Act Exposure Compounds the Risk
Federal prosecutors in an AKS investigation review every Medicare or Medicaid claim that a prohibited referral produced. An AKS investigation may also create exposure under the False Claims Act when claims submitted to federal health care programs are tied to the alleged misconduct.
The key consequences providers face when both statutes apply include:
- Treble damages on every claim tied to a tainted referral.
- Civil monetary penalties assessed on a per-claim basis.
- Exclusion from Medicare and Medicaid participation.
- Potential criminal liability under the AKS runs alongside civil exposure under the False Claims Act.
- Mandatory repayment obligations that apply regardless of how the civil matter resolves.
Providers managing both statutes require a defense coordinated across every proceeding from the start. A position taken in response to AKS allegations can affect the False Claims Act case, and that connection has to be built into the strategy before anything goes to the government.
The Time to Act Is Before Positions Get Fixed
A government letter regarding a compensation arrangement marks the point at which a provider’s response becomes part of the federal record. Federal investigators have been reviewing the arrangement for months before that letter arrives, and what is submitted early determines how everything that follows is read.
Our Anti-Kickback Statute (AKS) defense lawyers start by assessing what the government has and what the record currently supports. From there, we outline the available defense options before submitting any formal response.
Bertolino LLP has defended Texas health care providers and licensed professionals since 2003. We stand by you through every stage of the process. Reach out to our Client Success Liaison today to schedule a complimentary consultation.
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