How Lawyers Defend Charges of Paying Healthcare Kickbacks

How Lawyers Defend Charges of Paying Healthcare Kickbacks

In the healthcare industry, kickbacks are illegal payments or perks given to reward referrals of federal healthcare program business. Kickbacks undermine medical judgement and increase costs. But allegations aren’t always clear cut. Savvy lawyers use various strategies to fight kickback charges.

The Anti-Kickback Statute

The main law prohibiting kickbacks is the Anti-Kickback Statute. It makes it a felony to knowingly pay or receive compensation to induce referrals for services covered by Medicare, Medicaid and other federal programs. Both sides of the kickback can face criminal penalties.

But the law has gray areas. Many financial relationships are not outright kickbacks. Lawyers exploit these grey zones to undermine charges.

Question the “Knowing” Violation

To violate the law, you must “knowingly and willfully” pay or take a kickback. Defense lawyers argue many clients don’t realize they crossed a line. They claim the client:

• Misunderstood complex rules
• Relied on lawyers/accountants saying arrangements were legal
• Had no intent to violate the statute

While ignorance doesn’t excuse violations, it can cast doubt on knowingly paying illegal kickbacks.

Allege Lack of Improper Intent

Lawyers argue the client lacked any improper intent and acted in good faith. They say the payments were meant to compensate for legitimate services, not induce referrals. The defense tries framing it as an innocent business relationship, not a corrupt kickback scheme.

Claim the Referrals Were Not “Induced”

A payment must be intended to “induce” referrals to violate the law. The defense argues the referrals were based on medical judgment, not the payments. They say:

• “The doctor made referrals because it was best for the patient.”
• “The services would have happened without payments.”
• “The payments merely compensated for hard work.”

If lawyers show referrals resulted from medical factors, not payments, it helps defeat kickback allegations.

Highlight Legitimate Reasons for Payments

Defense lawyers argue payments were for legitimate services, not inducements. They show proof of:

• Medical directorships
• Administrative support
• Education programs
• Research activities
• Reasonable compensation

Documenting legitimate purposes for payments pokes holes in the prosecution’s case.

Seek Safe Harbor Protection

The Anti-Kickback Statute has “safe harbors” – exceptions for common financial arrangements. Defense lawyers argue the payments fall under safe harbors like:

• Personal services contracts
• Space and equipment rentals
• Investment interests
• Discounts and rebates

If the payments qualify for any safe harbors, it provides strong protection against liability.

Allege Rogue Actors

In corporate cases, the defense blames rogue employees acting alone. They claim:

• “Executives had no knowledge of the scheme.”
• “The company had compliance policies prohibiting it.”
• “Management moved swiftly once discovered.”

This aims to shield the company from liability for individual wrongdoing.

Seek a Favorable Plea Deal

Many kickback cases end in plea bargains. The defendant pleads guilty to reduced charges in exchange for dropping more serious ones. Defense lawyers negotiate for the best possible deal.

Use Sentencing Guidelines for Leniency

If facing criminal conviction, lawyers highlight mitigating factors under sentencing guidelines, like:

• Minimal kickback amounts
• No prior offenses
• Cooperation with investigators
• Accepting responsibility

This pushes for the lowest possible sentence under the guidelines.

In Summary

Skilled kickback defense lawyers have many arrows in their quiver. They attack improper intent, question the inducement of referrals, highlight legitimate purposes for payments, and seek safe harbors. While kickback allegations are serious, an experienced legal defense can often achieve favorable results.