Healthcare Reform Results in Amendments to the Anti-Kickback Statute

The Health Reform bill, also known as the Patient Protection and Affordable Care Act, includes amendments to the Anti-Kickback Statute (AKS), including a relaxation of the “specific intent” requirement. The Health Reform bill amended Section 1128B of the Social Security Act to add the following statement: “with respect to violations of this section, a person need not have actual knowledge of this section or specific intent to commit a violation of this section.” The change rejects previous interpretations of the AKS that required the government to prove that an individual “knowingly and willfully” violated the statute. This amendment in the health care reform bill will make it much easier for federal prosecutors to prove the requisite intent in AKS cases.

The Health Reform bill also amended the AKS to expressly state that a claim billed pursuant to an arrangement that violates the statute is a false or fraudulent claim under the false claims act, a position that was previously taken by some courts.

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