A brand new idea of legal responsibility below the Anti-Kickback Statute: “Record get entry to idea”

HCI is a non-governmental group that reduced in size with the Illinois Division of Ageing to coordinate healthcare and non-healthcare services and products for low-income seniors (equivalent to “Foods on Wheels”  and clinical services and products). MPI arranges clinical referrals to a lot of healthcare firms, together with to 2 of the defendants, domestic well being firms below the control of MPI. HCI and MPI had entered right into a control services and products settlement (MSA) pursuant to which MPI paid $5,000 per 30 days to HCI over 18 months, ostensibly in change for positive control services and products from HCI’s team of workers, equivalent to written knowledge experiences. Alternatively, MPI’s proprietor testified that HCI by no means supplied those services and products and that the aim of the association was once as an alternative to acquire direct get entry to to HCI’s recordsdata for functions of information mining. In keeping with a former MPI worker, HCI granted MPI get entry to to its purchasers’ non-public knowledge, together with analysis, insurance coverage standing, and call knowledge. The knowledge was once then utilized by MPI to solicit HCI purchasers by means of telephone for Medicare-reimbursed healthcare services and products. If the HCI consumer didn’t have a health care provider, was once not able to shuttle, or wanted in-home nursing, MPI despatched a supplier from its sister group. The MSA didn’t point out both MPI’s get entry to to HCI’s uncooked knowledge or MPI’s proper to solicit HCI’s purchasers. HCI persisted to grant MPI get entry to to HCI consumer knowledge even after MPI terminated the MSA. Even if witnesses have been ignorant of anything else of worth being paid at once for a referral, the court docket discovered the defendants liable below the AKS on a “record get entry to idea” of referral—a idea which broadens the definition of “referral” past recommending or authorizing the supply of healthcare services and products. 

On July 26, 2019, the court docket granted the defendants’ movement for a directed verdict, discovering the plaintiff had did not state a prima facie case of AKS violation in failing to attract a connection between bills from MPI and any referrals from HCI. Alternatively, on April 29, 2020, the 7th Circuit reversed and remanded to decide whether or not the plaintiff’s “record get entry to idea” constituted a referral below the AKS. The 7th Circuit puzzled whether or not the decrease court docket had implemented an “inclusive figuring out” of what constitutes a referral and famous that, for AKS functions, the definition of a “referral” is way broader than mere approval of healthcare services and products, as an alternative “encapsulating each direct and oblique approach of connecting a affected person with a supplier.” In keeping with the 7th Circuit, the definition of “referral” is going “past particular suggestions to incorporate extra delicate preparations[,]” and the inquiry for figuring out what constitutes a referral “is a sensible one that specializes in substance, no longer shape.” Forestall Illinois Well being Care Fraud, LLC v. Sayeed, 957 F.3d 743 (seventh Cir. 2020). On remand, the Northern District of Illinois discovered that HCI granting MPI get entry to to consumer touch knowledge to be able to solicit Medicare-funded services and products was once substantively the similar as though HCI had at once referred its purchasers to MPI for the ones services and products. Because of this, the court docket recommended the “record get entry to idea” of referral below the AKS in its November 24, 2020 opinion. 

The June 2021 resolution excited by whether or not the charges paid by means of MPI constituted unlawful remuneration below the AKS and whether or not any AKS protected harbor implemented. For the reason that court docket’s earlier opinion established the “record get entry to idea” of referral below the AKS, the testimony of MPI’s proprietor concerning the objective of the per 30 days price was once enough to turn that he “knowingly and willfully brought on HCI to supply referrals (i.e. get entry to to knowledge)” in change for the per 30 days price in violation of the AKS. The defendants had claimed as an affirmative protection that their actions have been safe below the “non-public services and products and control contracts” protected harbor to the AKS at 42 C.F.R. § 1001.952(d). Some of the seven parts of this protected harbor is that the settlement quilt the entire services and products that an agent supplies to the foremost and specify the services and products to be supplied by means of the agent. Alternatively, earlier testimony had established the MSA didn’t explicitly quilt MPI’s get entry to to HCI’s uncooked consumer knowledge or MPI’s solicitation of HCI purchasers. Because of this, the defendants’ actions weren’t safe by means of the appropriate AKS protected harbor. 

This opinion is the newest in a just about 9-year previous case to start with filed on November 20, 2012. The defendants requested the court docket in July to rethink the verdict or grant a brand new trial, however the events sooner or later agreed that the defendants’ now-withdrawn post-trial motions may also be filed as soon as the court docket makes a decision on damages. Whilst the problem has been widely briefed and argued over the last few months, the court docket has no longer but dominated on damages. Alternatively, given the 7th Circuit’s obvious openness to enlargement of the idea that of “referral” below the AKS and the endorsement of the “record get entry to idea” by means of the Northern District of Illinois, any control corporate, care control corporate, industry affiliation, or different group with paid get entry to to consumer lists must achieve out to an skilled well being care lawyer to verify such association isn’t suspect below the AKS.  

Kevin Kifer is an affiliate in Thompson Coburn’s Well being Legislation Apply Workforce.
Nicole Jobe is a spouse in Thompson Coburn’s Well being Legislation Apply Workforce.