The “false statement” AKS trap

Martin Meritt, Esq.

Stark law and the Anti-Kickback Statute are two primary federal physician “conflict of interest” laws which are aimed at reducing the influence of money when prescribing and ordering goods and services covered by Medicare and other health care programs. Many states have similar “baby Stark laws,” which must be considered.

Under Stark law 42 USC 1395nn, certain financial arrangements are prohibited unless and exemption applies and under the AKS 42 U.S. Code § 1320a-7b(b), illegal remunerations 42 U.S. Code (“kickbacks”) are forbidden unless protected by a safe harbor.

There is, however, a lesser-known provision of the federal Anti-kickback statute, found at 42 U.S. Code § 1320a-7b(a) which prohibits making a “false statement or representation” in order to get paid by a federal program.

I recently defended a doctor in an Anti-kickback case where the main focus of the prosecution’s case was the payment of money under the Management Services (MSO) Safe Harbor.Things were going fairly well, until the prosecution discovered that a hospital at the center of the dispute had asked each physician to sign an attestation that the physicians did not have any financial relationship with the hospital under Stark law or the AKS.

While we could argue that the doctors didn’t understand what they were signing, we couldn’t argue that they didn’t sign it. And this led to many of the doctors pleading guilty, not for taking a kickback, but for signing a “false record.” Which is still a felony and which will normally cost doctors their medical license.

The lesson, then, is that any time a physician is asked to sign any type of statement regarding financial interest, whether in a hospital credentialling application, an investment package related to an ASC or otherwise, physicians must pay attention to what they are signing.

If anything about a statement is potentially untrue, or you don’t understand it, get legal advice before signing.

Martin Merritt is a health lawyer and health care litigator at Martin Merritt PLLC, as well as past president of the Texas Health Lawyers Association and past chairman of the Dallas Bar Association Health Law Section. He can be reached at Martin@martinmerritt.com.