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The safe harbors do not cover every area of permissible behavior, and an arrangement may not qualify as a safe harbor, but still not subject someone to the risk of prosecution.
In fact, the courts have interpreted the Federal Anti-Kickback Law relatively narrowly. The court in Feldstein v. Nash Community Health Servs., 51 F. Supp.2d 673 (E.D.N.C. 1999), implied that the government has to show that a defendant knowingly intended to violate the anti-kickback law. However, the court did not go so far as to permit ignorance of the law to form a defense to the charge; on the contrary, the court expected the health-care providers to know the content of fraud alerts issued by the regulatory agency. The Feldstein court was building on earlier similar decisions in Hanlester Network v. Shalala, 51 F.3d 1390 (9th Cir. 1995) and United States v. Bay State Ambulance & Hosp. Rental Serv. Inc., 874 F.2d 20 (1st Cir. 1989).
The Office of Inspector General (OIG) of the U.S. Department of Health is in charge of enforcing the Federal Anti-Kickback Law. The OIG has developed regulations to help ensure compliance with the Law, but is also aware that many contemplated arrangements may not fall within the safe harbors, but still would not violate the Law. Therefore, the OIG will provide advisory opinions about specific proposed business arrangements. Moreover, while these opinions cannot be used as legal precedent, the OIG does publish the opinions, to help provide guidance to people in determining whether a specific arrangement...
It also publishes fraud alerts, which highlight specific areas of concern.
The proposed arrangement appears to be one that might violate the Federal Anti-Kickback Law, though it appears that the doctors would be bona fide employees and that they would not be receiving bonuses specifically for referrals for Medicaid patients. Because there is a possibility that the arrangement would violate the applicable laws, it appears foolish to proceed without further research. Because entering into such an agreement would make me personally liable for violation of a federal felony, I would not do so without obtaining further information about the legality of the proposed arrangement. I would urge the board of directors to obtain an advisory opinion from the OIG regarding the proposed business arrangement, to make sure that nothing in the arrangement violated the Federal Anti-Kickback Law. At the very least, I would urge the board of directors to examine the OIG's fraud alerts and advisory opinions to determine whether it has previously determined that a similar arrangement violates the Anti-Kickback Law.
References
42 C.F.R. 1001.952.
42 U.S.C.S. 1320a-7.
Ambulance & Hosp. Rental Serv. Inc., 874 F.2d 20 (1st Cir. 1989).
Feldstein v. Nash Community Health Servs., Inc., 51 F. Supp. 2d 673 (E.D.N.C. 1999)
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