In February 2020, Dominic Trumbo, a patient recruiter based out of Lexington, Kentucky was sentenced to 60 months in prison for receiving over $1 million in illegal kickback money from several home health agencies throughout the nation in exchange for information on Medicare beneficiaries. Trumbo instructed his employees to cold-call Medicare beneficiaries and offer incentives to get them to sign up for home health care. Trumbo then sold the Medicare beneficiary information to home health agencies around the country in exchange for illegal kickback payments. The evidence at trial further showed that Trumbo and his co-conspirators went to great lengths to conceal their scheme to defraud Medicare, creating sham contracts and fake invoices to cover their tracks.
The Anti-Kickback Statute (AKS), enacted in 1972, is the criminal law that took down the Trumbo empire. The AKS prohibits the “knowing and willful payment” of so-called “remuneration” (essentially gifts; such as free rent, expensive hotels, meals, etc.) to induce and/or reward patient referrals. Criminal penalties for violating the AKS include large fines, prison time, and exclusion from participation in federal health care programs. The government need not even prove patient harm or financial loss to programs to prove a violation of AKS; taking money or gifts from medical sales companies, for example, can land physicians in serious trouble. Kickbacks can lead to overutilization, increased costs of healthcare services, and corrupt medical decision-making, steering patients away from medically valid services and/or therapies and unfair service delivery.
In December 2023, Community Health Network Inc., based out of Indianapolis, Indiana, was required to pay $345 million in a settlement to resolve allegations that it violated the False Claims Act by knowingly submitting claims to Medicare for services that were referred in violation of the Stark Law. The U.S. government alleged that the scheme began in 2008 when Community Health Network began to recruit physicians for employment for the purpose of capturing their “downstream referrals.” Over the years, Community Health Network successfully recruited hundreds of local doctors, in an array of specialties, by paying salaries significantly higher than market-rate at their own practices.
The Physician Self-Referral Law, also commonly referred to as the Stark law, was first enacted in 1992 to limit the financial relationships that physicians may enter into, Stark further expanded in 1995 to encompass the “designated health services” (DHS) that patients receive. The DHS refers to the health facility or institution that performs services such as occupational therapies, clinical laboratory testing, radiology services, medical equipment, inpatient hospital services, outpatient prescription services, or home health services. The Stark law broadly seeks to prevent doctors from referring patients to the DHS if there is a financial relationship present between the physician and the healthcare entity, their immediate family member, and the healthcare entity.
On November 20, 2020, the Centers for Medicare & Medicaid Services (CMS) released a final rule in hopes of modernizing and clarifying the regulations that interpret Stark law which has not been significantly updated since 1995. According to CMS, the final rule notes that “for the first time, the regulations will support the necessary evolution of the American healthcare delivery and payment system.” Using this final rule, in 2022, CMS settled a record-breaking 104 Stark law self-disclosures, which totaled over $9.2 million, almost quadruple the 2021 settlements.