The statute applies even where there is no actual government reimbursement.
The opportunity to invest in a "private-pay only" joint venture may, in some circumstances, constitute an inducement to physicians to refer patients to the joint venture partner for other services covered by governmental programs.
In general, violation of the statute is a two-way street
While it is theoretically possible for one person to violate the statute by offering a kickback to (or soliciting a kickback from) another person even where the other person refuses to play ball, one does not commonly see prosecutions based on that fact situation.
Where the requisite bad intent exists, an arrangement may violate the statute even where there are also legitimate purposes behind the arrangement.
Many claimed Anti-Kickback Statute violations arise from arrangements that may serve legitimate, socially useful purposes, such as providing healthcare services that might not otherwise be available in the local community; however, there are cases that hold that the statute is violated if even one purpose of an arrangement is to induce referrals or otherwise to engage in activities violative of the statute, even though there are other good purposes present. The "one purpose" test and its variations makes it important to note that an arrangement is not saved from violating the statute simply because the parties can articulate hypothetical (or even real) purposes behind the arrangement that do not violate the statute.
The statute is a criminal statute
While the government's enforcement arsenal under the Anti-
Kickback Statute includes civil and administrative sanctions, it should always be borne in mind that violation of the statute is a felony.
Source: Adapted from Hill & Horton, 2012
Question No. 3: "Did the physicians dishonor their fiduciary relationship with their patients? If so, how?
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