The Anti-Kickback statutes are codified under 42 U.S.C. § 1320a-7b. In short, these statutes stand for the proposition that it is a crime for a dentist, a physician, or a chiropractor to knowingly or willfully offer, pay, solicit, or receive remuneration, directly or indirectly, in cash or in kind, in exchange for, referring an individual, or furnishing or arranging for a good or service, and for which payment may be made under Medicare or Medicaid. The Anti-Kickback Statutes are similar to Stark law, however, one of the main distinctions is that while Stark law does not have an intent (to commit the act) requirement, the Anti-Kickback statutes do.
The Anti-Kickback Statutes and regulations contain several “safe harbors” and other parameters for dentists, physicians, and chiropractors for establishing compliant relationships –including the need for “fair market value” compensation. These safe harbors are:
a- Personal services
b- Space and equipment leases
c- Sale of a medical practice
d- Practitioner recruitment
e- Employment agreements
Failure to meet a safe harbor does not make an arrangement illegal for a dentist or a physician but it may be investigated and prosecuted. While many Stark exceptions bear similarity to the Anti-Kickback safe harbors, most Stark Law exceptions applicable to practice acquisitions and physician employment have fair market value and commercial reasonableness requirements, including the bona-fide employment exception, the personal services arrangement exception and the fair market value exception.