Federal appeals court expands definition of 'referral' under Anti-Kickback Statute

The U.S. Court of Appeals for the Seventh Circuit has expanded the definition of "referral" under the Anti-Kickback Statute, causing some provider arrangements that were once safe to now implicate the Anti-Kickback Statute, according to a National Law Review report.

In the case of U.S. v. Patel, the court held a violation of the statute can occur when a healthcare provider authorizes a patient for specialist treatment even without referring a patient to a specific specialist, according to the report.

The provider-defendant in the case was paid by Grand Home Health Care in Chicago for each original home health certification he provided and an additional amount for the recertification if the patient chose to receive care from Grand Home Health Care. However, he argued he had not acted in violation of the Anti-Kickback Statute because he never recommended a specific home health company.

The court disagreed with the defendant. The court said the defendant had acted as a "gatekeeper" and without his initial approval, "his patients would not have been able to receive treatment from the home health company selected."

The court concluded an illegal referral occurs when a physician does something "that either directs a patient to a particular provider or allows the patient to receive care from that provider," according to the report.

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