Published on December 13, 2022 by Gail Allyn Short  

Health care fraud in the United States costs the nation tens of billions of dollars every year, according to the National Health Care Anti-Fraud Association. One common scheme used to commit health care fraud is kickbacks, which involve payments made to encourage physicians or other providers to, for example, prescribe a certain drug or medical device or send patients to a particular medical clinic, in exchange for cash.

“The biggest problem with kickbacks is that they incentivize doctors to provide patients with unnecessary services, and those unnecessary services can result in physical harm to the patient and result in greater costs to thelarger health care system,” said Chinelo Diké-Minor, an assistant professor at Cumberland School of Law.

A former assistant U.S. attorney for the Northern District of Alabama, Diké-Minor served as the office’s criminal division’s health care fraud coordinator. Today, she is researching the legislative histories of kickback laws in the United States and argues that the current criminal kickback statutes are not enough to deter health care fraudsters.

She points to the Anti-Kickback Statute, which outlaws kickbacks for services covered by public, government-run insurers like Medicare and Medicaid, and the Eliminating Kickbacks in Recovery Act (EKRA), which bans such compensation for health care services covered by both public and private insurers. The problem, says Diké-Minor, is that although EKRA covers both public and private insurers, it applies only to opioid-related treatments and services.

“Imagine a prosecutor is looking at the person who is getting kickbacks for all these non-opioid related services, but because it’s only paid for by private insurance, he or she can’t prosecute that person using current kickback laws,” she said.

To help, she says prosecutors are increasingly turning to the Travel Act that outlaws crossing state lines with the intent to bribe someone if the bribery violates state law. “It’s a complicated law that rides or dies on what relevant state law exists. So, it’s not used more because it’s a difficult statute to apply to this,” she said.

Diké-Minor argues that Congress should amend the Anti-Kickback Statute to cover medical services paid for by private insurers. “If you accept that kickbacks incentivize medically unnecessary services, what it will do is lead to greater deterrence and hopefully, eventually, help bring down health care costs,” she said.

Diké-Minor discussed her findings at the 2022 Health Law Scholars Workshop co-sponsored by the American Society of Law, Medicine and Ethics and the Saint Louis University School of Law Center for Health Law Studies.

This story is included as a feature in the fall 2022 issue of Seasons magazine. Enjoy the complete issue here.

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