Anti-Kickback Statute Defense Lawyer

The Anti-Kickback Statute does not ask whether a service was delivered, whether the patient needed it, or whether the claim was coded correctly. It asks a different question entirely: why money, or anything else of value, moved between two parties who are in a position to send each other business. A medically appropriate, properly documented, accurately billed claim can still sit at the center of a federal criminal case if the referral behind it was bought.

That difference is what makes 42 U.S.C. § 1320a-7b unlike an ordinary fraud statute, and it is why arrangements that look entirely commercial from the inside generate federal exposure: medical directorships, space and equipment leases, management and billing fees, marketing and lead generation agreements, speaker programs, and research payments. Law Offices Of SRIS, P.C. represents physicians, laboratory and pharmacy owners, device and equipment suppliers, home health operators, management companies, and marketers whose business relationships have come under federal review. To discuss an Anti-Kickback matter, call (888) 437-7747.

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What the Anti-Kickback Statute Prohibits

Section 1320a-7b reaches knowingly and willfully soliciting, receiving, offering, or paying any remuneration, directly or indirectly, overtly or covertly, in cash or in kind, to induce or reward the referral of business reimbursable under a Federal health care program, or the purchasing, leasing, ordering, or arranging for any good, facility, service, or item so reimbursable.

Two features of that language matter immediately. First, the statute is two-sided. The person who pays and the person who receives are both within it, which is why investigations of a single arrangement routinely produce charges against parties on opposite sides of a contract. Second, the prohibition attaches to the purpose of the payment rather than to any defect in the claim that follows. There is no requirement that a claim be false, that a service be unnecessary, or that any patient be harmed.

The reach is defined by the program, not the payor generally. The statute is tied to Federal health care programs, which is a narrower field than the health care benefit programs covered by the federal health care fraud statute. That boundary is worth confirming against the current statutory definitions in any specific matter, because it can determine whether the statute applies to an arrangement at all.

Remuneration Is Broader Than Cash

Remuneration means anything of value. Prosecutors have treated as remuneration items far removed from an envelope of money: below-market rent, above-market rent paid to a referral source, free or discounted staffing, equipment provided without payment, waived patient cost-sharing, meals and travel, consulting fees for work that produced little, directorship stipends for duties nobody performed, and business opportunities steered to a physician’s relatives.

Because the definition is broad, the legal question is almost never whether something of value passed. It is why it passed. That shifts the entire dispute onto intent and onto the contemporaneous record of how an arrangement was priced, documented, negotiated, and performed. Arrangements that were valued properly but never actually carried out are among the most difficult to defend, because the absence of performance invites the inference that the payment was for something else.

Intent, and the One-Purpose Problem

The statute requires that the defendant act knowingly and willfully, and it contains a provision addressing how much a person must know about the section itself in order to violate it. That provision is central to how intent is argued and should be read in the current statutory text with counsel rather than in any summary, including this one.

Courts have also generally taken the view that an arrangement can violate the statute where one purpose of the payment was to induce referrals, even though the arrangement served other, entirely legitimate purposes as well. That approach is why a defense of the form we also had good business reasons rarely succeeds standing alone. The current state of this doctrine, and the way it is charged to a jury, varies and evolves, so confirm it for the charging district with counsel before relying on it.

What follows practically is that intent is proved and disproved through documents about purpose. Emails discussing why a consultant was retained, spreadsheets tracking referral volume against payments, and drafts of an agreement showing what was removed from it tend to matter more than the executed contract.

Regulatory Safe Harbors Exist, and They Are Narrow

Regulations create safe harbors that protect specified categories of arrangement from prosecution under the statute. They are voluntary, technical, and demanding. Their conditions are set out in the regulation itself, they are not paraphrased on this page, and compliance with any of them is assessed against the current regulatory text rather than against a summary or a memory of an earlier version.

Two points matter more than the details. Falling outside a safe harbor is not itself a violation; it simply means the arrangement is evaluated on its facts and its purpose. And substantial compliance is not the test, because a safe harbor either applies or it does not. Many federal cases involve arrangements that were structured toward a safe harbor at the outset and drifted away from it as the business changed, which is why the documents showing what was actually done are more important than the documents describing what was planned.

Where the Criminal Statute Meets Civil Liability

An Anti-Kickback investigation rarely stays criminal and rarely stays alone. Claims tainted by an unlawful arrangement can support civil False Claims Act liability, and those actions are frequently brought by former employees or business partners under seal long before anyone at the company learns of them. Administrative exposure, including program exclusion, follows its own rules and its own timetable.

The Stark Law is a separate regime and should not be conflated with this one. In structure, Stark is a civil prohibition on certain physician referrals that operates without regard to intent, while the Anti-Kickback Statute is a criminal statute that requires proof of a culpable state of mind. Their requirements and consequences differ, and an arrangement can raise questions under one without raising the same question under the other. Analysis of either belongs with counsel reading the current text of that regime.

Arrangements That Attract Federal Attention

Certain structures recur in Eastern District of Virginia investigations. Laboratory and diagnostic arrangements draw scrutiny where compensation to a marketer, a physician, or a collection site varies with volume. Pharmacy and durable medical equipment matters commonly involve lead generators paid per patient acquired. Telehealth structures pair a marketing entity, a prescribing clinician, and a supplier, and the government examines who paid whom and for what.

Practice-level arrangements draw attention too: medical directorships at facilities that also receive the director’s referrals, leases between a treating practice and a referring group, free staffing placed in a referring practice, and management fees paid to entities owned by referral sources. None of these is unlawful as a category. Each becomes a criminal question when the government believes the money tracked referrals rather than the work described in the agreement.

Defending an Investigation Before a Charging Decision

Anti-Kickback matters are usually won or narrowed in the document record, and that record already exists by the time a subpoena arrives. The first tasks are preserving everything, mapping the arrangement as it was actually performed rather than as it was drafted, and identifying who inside the organization has individual exposure and needs separate counsel.

From there the work is reconstructing purpose. That means locating the valuation analysis and the person who did it, the evidence that services under the agreement were rendered, the business rationale that existed before any referral relationship, and the correspondence showing what the parties actually negotiated. Where that record is strong, presenting it to the government before a charging decision is materially more useful than presenting it to a jury afterward. Where it is weak, knowing that early shapes every decision that follows.

Frequently Asked Questions

Does it matter that the patients received appropriate care?

It matters to the overall picture, but it does not answer the element. The Anti-Kickback Statute targets the purpose behind a payment, not the quality of the service that follows, so there is no requirement that care was substandard, unnecessary, or harmful. Good clinical outcomes are still worth establishing, because they undercut a broader fraud narrative and they matter at sentencing. They simply do not resolve the question the statute asks, which is why the money moved between the parties.

Is a payment at fair market value automatically lawful?

No, although fair market value is important evidence. A payment priced correctly can still be unlawful if a purpose behind it was to induce referrals, and a payment that is defensible on its numbers can look very different when the surrounding documents show it was negotiated against expected referral volume. Conversely, a valuation prepared contemporaneously by a qualified independent professional, together with proof that the services were actually performed, is among the strongest material a defense can hold.

What counts as remuneration under the statute?

Anything of value, given directly or indirectly, in cash or in kind. That has included discounted or free rent, staffing, equipment, meals, travel, waived patient cost-sharing, consulting and directorship fees, and benefits directed to family members rather than to the referral source personally. Because the definition is so wide, disputes rarely concern whether value passed. They concern why it passed, which is a question answered from the contemporaneous documents about how the arrangement was priced, approved, and performed.

Can both sides of an arrangement be charged?

Yes. The statute reaches soliciting and receiving as well as offering and paying, so a single arrangement can generate exposure for the party that funded it and the party that benefited from it. That has practical consequences early. Parties on opposite sides of a contract cannot assume their interests align, joint representation is usually inappropriate, and information shared informally between them can become evidence. Separate counsel and, where suitable, a formal joint defense agreement are the ordinary responses.

Does the Anti-Kickback Statute apply to private insurance?

The statute is tied to Federal health care programs, so arrangements touching only commercial payors sit outside its core reach. That boundary should be confirmed against the current statutory definitions rather than assumed, and it does not mean such arrangements are risk free. Other criminal statutes, state law, and contractual obligations to commercial payors may still apply, and a mixed book of business often means federal program claims are present somewhere in a structure that was designed without them in mind.

How is this different from the Stark Law?

Structurally, the two operate on different principles. Stark is a civil prohibition on certain physician referrals that applies without proof of intent, so an arrangement either satisfies its requirements or it does not. The Anti-Kickback Statute is criminal and requires a culpable state of mind, which is why intent evidence dominates these cases. The regimes are analyzed separately, and neither summary substitutes for reading the current text of the relevant provision with counsel who has the arrangement in front of them.

A marketing agreement is under review. What comes first?

Preservation, then reconstruction. Stop routine deletion across email, messaging, and billing systems, then assemble how the arrangement actually operated: what the marketer was paid, on what basis, what was delivered in return, and who approved the structure. Identify who within the organization has individual exposure so they can obtain their own counsel before anyone is interviewed. Avoid asking employees to align their accounts, because that conduct can create an obstruction case where none existed.

Working With Law Offices Of SRIS, P.C.

Anti-Kickback defense turns on purpose rather than on paperwork accuracy. Reconstructing how an arrangement was priced, approved, and actually performed, and finding the contemporaneous evidence of why it existed, is what determines whether the intent element can be met.

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 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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An anti kickback statute case is one part of fraud & financial crimes work, and our page on bank fraud defence covers the wider process.