Anti-Kickback Statute Penalties and Sentencing

Sentencing in a kickback case poses a problem that ordinary fraud sentencing does not. In a billing fraud prosecution the government can point to claims it says should never have been paid. In an Anti-Kickback prosecution the services were often delivered, the coding was often correct, and the patients often qualified. What was wrong was the reason a referral existed. Translating that into a number the Guidelines can use is genuinely contested, and it is where most of the sentencing argument sits.

This page describes how exposure is built in a case under 42 U.S.C. § 1320a-7b: how the government constructs a loss figure, which adjustments apply, and how forfeiture, restitution, and the civil and administrative consequences interact with the criminal judgment. No penalty figure appears here. What the section authorizes should be read from the current statutory text with counsel who holds the indictment. To discuss exposure in a specific matter, call (888) 437-7747.

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The Sentence Is Built From Findings, Not From the Statute

Federal sentencing has two layers. The statute of conviction sets an outer boundary, and within it the court calculates an advisory Guidelines range, weighs the statutory sentencing factors, and imposes a sentence that may fall inside, above, or below the range. Because that boundary is generally well beyond what the range produces in these matters, the argument concentrates on findings rather than on ceilings.

Those findings are specific: what amount the court attributes to the offense, what role the defendant held, whether a position of trust was used, and what the defendant did once the arrangement came under scrutiny. Each is separately litigated, and each is supported or defeated by documents rather than by characterization.

The Loss Dispute Is Different in a Kickback Case

The government has several candidates for the number. It may propose the total amount the program paid on every claim connected to the tainted referral relationship. It may propose the value of the remuneration itself. It may propose the profit the defendant earned from the referred business. These produce dramatically different ranges from the same facts.

The defense position usually begins from what the program actually lost. Where services were rendered, were medically appropriate, and would have been reimbursed had a different referral source sent the patient, the argument is that the program received the value it paid for and that the harm attributable to the offense is far smaller than the gross claim total. Credits for value legitimately conferred are the mechanism for that argument, and they are established from clinical and payment records rather than from assertion.

Where the government uses the full claim total, the causal link between the arrangement and each claim becomes the battleground. Referrals that predated the arrangement, patients who came from other sources, and business that would have arrived regardless are all reasons a total can overstate what the offense caused.

The Adjustments That Move the Range

Role in the offense is often the most consequential adjustment in these cases, because kickback schemes typically involve several parties in different positions. The person who designed a structure and recruited participants is treated differently from a clinician who accepted a directorship fee, and the record supporting a role finding is built from communications about who decided what.

Sophisticated means may be sought where an arrangement used intermediary entities, layered contracts, or payments routed through relatives or affiliates. Abuse of a position of trust is regularly sought against licensed clinicians. The number of victims is contested differently here than in a billing case, because identifying victims of a referral arrangement is not straightforward when the services were delivered and the claims were accurate.

Obstruction is added where conduct after the investigation began included backdating agreements, creating records of services that were never performed, or aligning accounts with other participants. Acceptance of responsibility can reduce the level, and it sits in tension with a contested loss position, which is a sequencing problem to work through before any resolution is agreed.

Forfeiture, Restitution, and the Civil and Administrative Overlay

Forfeiture in kickback matters reaches proceeds traceable to the offense, and the government often defines those proceeds expansively as the revenue from the referred business rather than the payment itself. Restitution rests on its own findings and may not match the Guidelines figure. Both can outlast a custodial sentence.

Alongside the criminal judgment sit consequences imposed elsewhere. Claims tainted by an unlawful arrangement can support civil False Claims Act liability, often through an action filed under seal by a former employee or business partner. Program exclusion and professional licensing action follow their own procedures. The mechanics and any applicable periods are set by the governing statutes and regulations, are not stated here, and should be confirmed against the current text with counsel before any criminal resolution is signed.

Arguing for a Sentence Below the Range

The most effective mitigation in these cases tends to be structural rather than personal. Where the services were genuinely delivered, where no patient was harmed, where the defendant occupied a peripheral position in an arrangement designed by others, and where the calculated figure rests on gross claims rather than on demonstrated harm, the range frequently overstates what the sentencing factors support.

Comparative disparity matters as well, particularly where the organizer of a structure resolved early on favorable terms while a participant who joined later faces a larger figure. That record is assembled from discovery across the life of the case rather than in the weeks before a hearing.

Frequently Asked Questions

Is the loss figure the amount of the kickback or the value of the claims?

Both are argued, and the difference is often enormous. The government commonly proposes the total the program paid on claims connected to the arrangement, while the defense argues that the harm is limited to what the program lost after crediting services actually delivered and appropriately provided. Courts approach this differently, so the applicable framework in the charging district should be confirmed with counsel. The dispute usually decides more about the sentence than the conviction itself does.

Does it help that the services were medically appropriate?

At sentencing it helps considerably, even though it does not defeat the offense. Delivered, appropriate, correctly billed services support a credit against the amount attributed to the offense and undercut any argument that patients were harmed. They also support a below-range argument on the sentencing factors. The evidence has to be assembled from clinical and payment records, because the government will not build that part of the picture and the presentence report will not contain it by default.

Can property be forfeited even though the services were real?

Yes. Forfeiture reaches proceeds traceable to the offense, and in kickback matters the government frequently characterizes revenue from the referred business as proceeds rather than limiting itself to the remuneration paid or received. Substitute assets can be reached in some postures. Because restraint can occur before trial and can affect the ability to operate a practice, the forfeiture allegation deserves attention from the first week rather than being treated as a sentencing detail.

How does a parallel False Claims Act case affect sentencing?

It affects timing, exposure, and negotiation. A civil action may resolve before or after the criminal case, and admissions made in one can be used in the other. Payments made in a civil settlement may bear on restitution, and cooperation in one proceeding can influence the other. Because the two tracks answer to different burdens of proof and different decision makers, sequencing them is a strategic decision rather than an administrative one.

Does acceptance of responsibility require conceding the loss figure?

Not necessarily. A defendant may contest the calculation while still accepting responsibility for the conduct charged, but the line between contesting a legal framework and denying relevant conduct is where the reduction is often lost. The safer path is to define precisely what is admitted and what remains disputed at the time the resolution is negotiated, rather than discovering the conflict when the presentence report is issued and positions have already hardened.

Will exclusion follow automatically from a conviction?

Exclusion is administrative and is decided outside the sentencing court under its own statutory and regulatory framework. Some categories are treated as mandatory and others as permissive, and any applicable period is fixed by those rules rather than by the judge. Those provisions are not summarized here and should be checked against the current text with counsel. For a practicing clinician the administrative consequence is frequently more significant than the sentence, so it belongs in the analysis before a plea is entered.

Working With Law Offices Of SRIS, P.C.

Sentencing in a kickback case is an argument about what the offense actually cost a program when the services behind the claims were delivered. Building that record, and separating referred business from business that would have arrived anyway, is what moves a range.

Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., is a former prosecutor and is admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York. The firm has been practicing since 1997. Mr. Sris and the firm’s Of Counsel attorneys handle criminal defense matters across those jurisdictions, which matters in federal practice because a single investigation frequently reaches conduct, witnesses, and records in more than one state. Mr. Sris brings a background in accounting and information systems from George Mason University, applied to complex financial and technology-related cases.

The firm serves Northern Virginia from 1655 Fort Myer Dr, Suite 700, Room 719, Arlington, VA 22209 and central Virginia from 7400 Beaufont Springs Drive, Suite 300, Room 395, Richmond, VA 23225. By appointment. Call (888) 437-7747 to schedule. Request a consultation. Reach our location at (888) 437-7747.

This page provides general information about sentencing exposure under the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b and does not create an attorney-client relationship. Case results depend on a variety of factors unique to each case. Results may vary.

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These penalties attach to one offence. Our page on anti kickback statute charges covers the offence as a whole.