Anti-Kickback Statute Elements of the Offense

An indictment under 42 U.S.C. § 1320a-7b usually reads as a description of a business relationship. The elements the government must actually prove are narrower than that description, and a jury is asked about each of them in turn.

This page sets out those elements: the act of offering, paying, soliciting, or receiving remuneration; the purpose of inducing or rewarding referrals or the ordering of covered items and services; the connection to a Federal health care program; and the required state of mind. Element formulations develop through decisions and through jury instructions, so confirm the current wording for the charging district with counsel before relying on this or any other summary. To discuss how the elements apply to a particular arrangement, call (888) 437-7747.

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Offering, Paying, Soliciting, or Receiving Remuneration

The prohibited act is defined on both sides of a transaction. Offering or paying remuneration is covered, and so is soliciting or receiving it, which is why parties on opposite sides of the same contract can be charged in a single indictment. Remuneration means anything of value, given directly or indirectly, overtly or covertly, in cash or in kind. Because the definition is so wide, this element is rarely where a case is won. Value almost always passed, and the dispute moves to why.

The Purpose of Inducing or Rewarding Referrals

The payment must be made or received to induce or reward the referral of business reimbursable under a covered program, or the purchasing, leasing, ordering, or arranging for a good, facility, service, or item so reimbursable. This is the element that carries the case. Courts have generally treated an arrangement as within the statute where inducing referrals was one of its purposes, even alongside legitimate ones, and that approach limits defenses resting only on the existence of a commercial rationale. The doctrine continues to develop, so its current formulation should be confirmed with counsel rather than assumed.

The Federal Health Care Program Connection

The referred or ordered business must be reimbursable under a Federal health care program. That boundary is narrower than the reach of the federal health care fraud statute, which extends to health care benefit programs generally and can include commercial plans. In a practice with a mixed book of business the question becomes factual: whether the arrangement touched covered business at all, and to what extent. The statutory definitions govern, and they should be read in their current form rather than paraphrased, because this element can determine whether the statute applies to a structure at all.

Knowingly and Willfully

The government must prove that the defendant acted knowingly and willfully. Knowledge addresses whether the conduct was deliberate. Willfulness addresses the defendant’s understanding that the conduct was unlawful, and the statute contains a provision about how much a person must know of the section itself, which is central to how this element is argued. Read that provision in the current statutory text with counsel. Good faith, genuine reliance on qualified advice, and an arrangement structured with contemporaneous attention to the applicable rules all operate against this element rather than against the others.

Frequently Asked Questions

Does the government have to prove that a referral actually occurred?

The focus of the statute is the payment and its purpose rather than the completion of any particular referral. Offering or soliciting remuneration is covered, so an arrangement can fall within the statute even where the anticipated business never materialized. In practice the government usually does show referrals, because referral volume is the evidence it uses to establish purpose. The absence of any referred business is still worth establishing, since it bears on both intent and on the amount attributed at sentencing.

What counts as remuneration?

Anything of value. That has included discounted or above-market rent, staffing supplied to a referring practice, equipment, meals and travel, waived patient cost-sharing, consulting and directorship fees, research payments, and benefits directed to relatives of a referral source rather than to the source personally. The breadth of the definition means the first element is seldom contested seriously. The genuine dispute is about purpose, and it is resolved from the contemporaneous documents showing how the arrangement was priced, approved, and performed.

Does the statute require a false claim?

No. Unlike a billing fraud charge, the Anti-Kickback Statute does not require that a claim was inaccurate, that a service was unnecessary, or that a patient was harmed. Correct claims for appropriate services can still be at the center of a prosecution if the referral behind them was purchased. That is the structural difference between this statute and the federal health care fraud statute, and it explains why a defense built entirely on clinical appropriateness does not answer the charge.

What is the one purpose approach?

It refers to the way courts have generally analyzed mixed motives: an arrangement can fall within the statute where inducing referrals was one purpose of a payment, even though other legitimate purposes existed. The practical consequence is that showing a genuine business reason does not by itself resolve the element. The state of this doctrine varies by context and continues to develop, so the instruction a court intends to give should be confirmed and, where appropriate, litigated rather than accepted as settled.

Can both the payer and the recipient be charged?

Yes. The statute covers offering and paying as well as soliciting and receiving, so a single arrangement can produce charges against parties on both sides of a contract. That has immediate practical effects. The parties cannot assume shared interests, joint representation is generally inappropriate, and informal communication between them after an investigation begins can become evidence. Separate counsel, and a formal joint defense agreement where suitable, are the usual responses to that posture.

How do these elements differ from health care fraud under section 1347?

Section 1347 is a fraud offense: it turns on a scheme to defraud a health care benefit program or to obtain its money through materially false representations. Section 1320a-7b turns on remuneration exchanged to induce or reward referrals, and it requires no falsity at all. The programs covered differ as well, since the fraud statute reaches beyond federal programs. Indictments often charge both, but the elements, the evidence, and the defenses are genuinely distinct.

Working With Law Offices Of SRIS, P.C.

Element analysis in a kickback case narrows the dispute quickly, because the act element is rarely contested and the program element is factual. What remains is purpose and state of mind, and those are proved from documents created long before anyone was interviewed.

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 the elements of an offense under 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 are the elements the government must prove. Our page on anti kickback statute charges covers the offence as a whole.