Section: 4.07
Issued: 10.12.2015
Updated: 03.20.2023
Purpose:
The purpose of this policy is to affirm that AHRC NYC is compliant with all Federal laws pertaining to anti-kickbacks.
Overview:
AHRC NYC is subject to the provisions of the Medicaid and Medicare Anti-Kickback statute. This law prohibits AHRC NYC staff, its Board members and officers and contractors from giving or receiving remuneration in exchange for referring a person to AHRC NYC services. This law also prohibits payments to people supported and their families for choosing AHRC NYC as their service provider. Finally, this statute prohibits “kickbacks” for purchase or lease of items paid for by Medicaid or Medicare. In this policy, Medicaid and Medicare are together called “The Federal Health Care Program.”
Policy:
This Anti-Kickback Policy requires compliance with the Federal Anti-Kickback Statute and analogous state laws. In addition, it is designed to ensure that all AHRC NYC employees, its Board members and officers, and contractors understand:
- The elements of the Anti-Kickback Statute and
- The obligation to report violations and/or seek guidance, when necessary.
This Policy is applicable to all AHRC NYC business transactions and practices and to all AHRC NYC employees, its Board members and officers and contractors engaged in such transactions.
Compliance with the Anti-Kickback Statute:
AHRC NYC is committed to conducting its business transactions in compliance with the Anti-Kickback Statute and analogous state laws. All AHRC NYC employees, its Board members and officers, and contractors must comply with the requirements of the Anti-Kickback Statute as well as all related AHRC NYC company policies and procedures. This means that AHRC NYC employees, its Board members and officers, and contractors must not give, receive, solicit or help arrange anything of value as part of the process of obtaining or making referrals in violation of the Anti-Kickback Statute or state law. AHRC NYC employees, its Board members and officers, and contractors must report suspected violations of the Anti-Kickback Statute and/or related company policies and procedures consistent with AHRC NYC Compliance Policies and the AHRC NYC Code of Conduct.
In addition, AHRC NYC employees, its Board members and officers and contractors may direct any questions regarding the Anti-Kickback Statute and related AHRC NYC company policies and procedures to the vice president of Corporate Compliance. If, after discussions with the vice president of Corporate Compliance, the response is not satisfactory, AHRC NYC employees and contractors should contact a member of the Board of Directors. If the complaint or questions involves the conduct of the vice president of Corporate Compliance, the employee or contractor should contact a member of the Board of Directors.
Failure to comply with this Policy may result in:
- Disciplinary action, up to and including termination of employment for employees; or
- Termination of the contractual arrangement for contractors; or
- Termination of membership on the Board of Directors for Board members and officers.
Elements of the Anti-Kickback Statute:
Prohibited Transactions and Practices
The Anti-Kickback Statute prohibits anyone from knowingly and willingly offering, paying, soliciting, or receiving any remuneration intended to induce:
- The purchase, lease, order, or recommending or arranging for the purchase, lease or order of an item or service that is reimbursed under a Federal Health Care Program; or
- Referrals for an item or service that is reimbursed under a Federal Health Care Program.
In evaluating whether any particular business transaction or practice violates the Anti-Kickback Statute, the government may consider whether the transaction or practice has the potential to:
- Increase costs to a Federal Health Care Program, beneficiaries, or enrollees
- Increase the risk of over-utilization or inappropriate utilization
- Raise safety or quality-of-care concerns
- Interfere with appropriate clinical decision making.
Remuneration and Safe Harbors
Remuneration means anything of value given, directly or indirectly, overtly or covertly, in cash or in kind, to a customer and includes, but is not limited to:
- Cash
- Free goods
- Free services
- Payment for items, services or data at above fair market value.
Because the federal government may construe the Anti-Kickback Statute broadly to prohibit otherwise beneficial business transactions or practices, it created “safe harbors” to shield certain transactions and practices from prosecution under the statute.
To receive the protection of a safe harbor, a transaction or practice must satisfy each element of a safe harbor. Transactions or practices that do not satisfy all elements of a relevant safe harbor are not necessarily illegal but may be subject to heightened scrutiny.
To the extent possible, company business transactions and practices should comply with an applicable safe harbor. Contractors should consult with legal counsel and employees should consult with the vice president of Corporate Compliance for advice on satisfying the requirements of a safe harbor.
Intent to Induce
The Anti-Kickback Statute is an intent-based statute. However, the Anti-Kickback Statute may be violated if one purpose of the business transaction or practice is to induce referrals or the purchasing, leasing or ordering of any item or service, or the recommending of or arranging for such activities, even if there are other legitimate purposes for the transaction or practice.
Penalties
Violation of the Anti-Kickback Statute is a felony. A conviction will lead to mandatory exclusion from the Medicaid and Medicare programs.