Anti-Kickback Training for Healthcare Professionals
Anti-kickback training for healthcare professionals is an essential element of a compliance training program and is mandated for all members of an organization’s workforce as well as First Tier, Downstream, and Related Entities (FDRs) if the organization participates in a Medicare Part C or Part D program.
The Anti-Kickback Statute was one of several measures introduced in the 1970s to combat fraud, waste, and abuse in healthcare. The Statute prohibits anyone from offering, soliciting, paying, or receiving “remuneration” in return for a business transaction that is ultimately paid for by a publicly funded health program. The Statute not only applies to anybody directly involved in the transaction, but also to anybody who facilitates the transaction.
Because the term “remuneration” not only applies to cash payments but to “anything of value”, it is important that all members of a healthcare organization’s workforce undergo anti-kickback training in order to avoid scenarios in which an employee inadvertently accepts a gift in return for a favor. In scenarios such as these, not only might the person offering the gift be violating the Anti-Kickback Statute, but the employee accepting the gift may be as well.
The Four Elements of Anti-Kickback Training
The four elements of anti-kickback training are an explanation of the Statute, the scenarios in which an exemption applies, the consequences of violating the Statute, and how to report a violation or an attempted violation. If the anti-kickback training is being provided by a qualifying Medicare Part C or Part D organization, it must be provided within 90 days of engaging a new member of the workforce and annually thereafter to all members of the workforce.
The Anti-Kickback Statute
The Anti‐Kickback Statute (42 U.S.C. § 1320a-7b(b)) is a criminal law that prohibits the exchange, offer to exchange, solicitation, or receipt of anything of value in an effort to influence, induce, or reward the referral of business to a publicly funded healthcare program. The Statute not only applies to incentives offered to healthcare providers and FDRs, but also to incentives offered to patients to use a specific healthcare service, medication, or physical aid.
It is important to mention in anti-kickback training that, since the passage of the Affordable Care Act in 2010, it is no longer necessary for HHS’ Office of Inspector General to prove actual knowledge of the Anti-Kickback Statute or specific intent to commit a violation in order to secure a conviction (Pub. L. 111–148, §6402(f)). In addition, those found guilty of violating the Anti-Kickback Statute may also be liable under the False Claims Act.
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When Exemptions Apply
There are multiple exemptions and “safe harbors” to the Anti-Kickback Statute. These are intended to encourage value-based arrangements which either reduce costs to publicly funded healthcare programs or improve the standard of patient care. However, most exemptions and “safe harbors” are subject to conditions, and it is important for workforce members to know what conditions apply to ensure they do not inadvertently violate the Anti-Kickback Statute.
Because it is not practical to include every condition for all exemptions in anti-kickback training, organizations should review the exemptions listed in 42 CFR 1001.952, determine which may apply to their business operations, and provide training on the relevant standards and conditions as necessary. However, when anti-kickback training is being provided to physicians, it may be beneficial to also include exemptions to the Stark Law (42 CFR §411.357).
The Consequences of Violations
The consequences of violations depend on the nature and severity of the violation. HHS’ Office of Inspector General (OIG) can file civil and/or criminal charges against those who violate the Anti-Kickback Statute – with the maximum penalties being a fine of up to $100,000 and a jail sentence of up to ten years. Importantly, these penalties are not only applicable to organizations. Unlike HIPAA, the penalties are applicable to workforce members as well.
In addition, if an individual or organization is found guilty of a felony violation of the Anti-Kickback Statute, they are automatically added to the HHS OIG Exclusion List. Being added to the Exclusion List for a felony means that an individual cannot work for – or supply services to – an organization in the public healthcare system for a minimum of five years. There may also be further penalties under the Civil Monetary Penalty Law depending on the nature of the violation.
Reporting a Violation
One of the most important elements of anti-kickback training is explaining to members of the workforce how they can report an offer of a kickback or a kickback incident they have witnessed. Many organizations already have internal processes in place to report different types of incidents (workplace accidents, data breaches, adverse patient events, etc.), but it is advisable to also alert workforce members to external options – including anonymous reporting options.
This element of anti-kickback training should also cover HHS’ OIG’s self-disclosure protocol. The protocol gives individuals and organizations the opportunity to voluntarily report violations of any anti-fraud regulation in return for reduced penalties. Workforce members should be advised that self-disclosing violations of the Anti-Kickback Statute can make the difference between being added to the Exclusion List and a permissive exclusion being waived.
Why All Organizations Should Provide Anti-Kickback Training
While it is necessary for organizations in Medicare Part C and Part D programs to provide anti-kickback training on appointment and annually thereafter, it is advisable for all other healthcare organizations to provide compliance training to prevent violations of federal fraud, waste and abuse regulations. In some cases, the failure to provide compliance training may be interpreted as indirect complicity in an unlawful activity for which the organization might be liable. The HIPAA Journal is the leading provider of healthcare compliance training.
Although the failure to provide anti-kickback training is more likely to result in a corrective action plan rather than an exclusion, the disruption of complying with a corrective action plan can impact operations and patient care. Therefore, organizations that require assistance in developing an anti-kickback training program – or who want to ensure their existing program meets the required standard – are advised to seek independent compliance advice.
HIPAA Training That Lowers Breach Risk Our training goes beyond basic rule coverage by targeting the mistakes that drive most incidents, using real-world, relatable examples drawn from over 10 years of our HIPAA breach reporting. The Gold Standard in HIPAA Training by The HIPAA Journal Team HIPAA Training That Lowers Breach Risk Our training goes beyond basic rule coverage by targeting the mistakes that drive most incidents, using real-world, relatable examples drawn from over 10 years of our HIPAA breach reporting. The Gold Standard in HIPAA Training by The HIPAA Journal Team Lessons Cover Emerging Issues Like AI Tools | CEUs & Certificate | Completion Tracking | HIPAA Training for Individuals
HIPAA Training
That Lowers Breach Risk
Our HIPAA training goes beyond basic rule coverage by targeting the mistakes that drive most incidents, using real-world, relatable examples drawn from over ten years of our HIPAA breach reporting.
The Gold Standard in HIPAA Training
by The HIPAA Journal Team
