The Anti-Kickback Statute Is Central to Federal Healthcare Fraud Enforcement in 2026
The Anti-Kickback Statute Is Central to Federal Healthcare Fraud Enforcement in 2026
The Anti-Kickback Statute is the central criminal statute in federal healthcare fraud enforcement. The Department of Justice charges 42 U.S.C. section 1320a-7b in most major Medicare and Medicaid prosecutions. Each count carries up to 10 years of imprisonment. The statute also operates as the legal predicate that turns medical billing into a federal crime when referrals are tainted by remuneration.
Enforcement is accelerating. The 2025 National Health Care Fraud Takedown charged 324 defendants in 50 federal districts in connection with $14.6 billion in intended loss, with AKS counts across amniotic wound allograft, telemedicine, genetic testing, DME, hospice, and addiction treatment schemes. On April 30, 2026, DOJ launched a West Coast Health Care Fraud Strike Force operating from San Francisco, Las Vegas, and Phoenix to target hospice, sober home, and wound care fraud. The DOJ Fraud Section's Health Care Fraud Unit and the new Health Care Fraud Data Fusion Center combine CMS claims data, HHS-OIG investigative information, FBI intelligence, and AI-driven analytics to identify AKS targets faster and with less warning to the provider.
The Statutory Elements of an Anti-Kickback Statute Violation
The Anti-Kickback Statute is codified at 42 U.S.C. section 1320a-7b(b). It is a criminal statute. Subsection (b)(1) prohibits the solicitation or receipt of remuneration. Subsection (b)(2) prohibits the offer or payment of remuneration. The statute reaches both sides of the transaction.
To convict a defendant under the AKS, the government must prove four elements beyond a reasonable doubt.
Each violation carries up to 10 years of imprisonment, a fine of up to $100,000, or both. The Bipartisan Budget Act of 2018 increased the maximum penalty from five to 10 years. A conviction also triggers mandatory exclusion from all federal healthcare programs under 42 U.S.C. section 1320a-7(a). For most healthcare professionals, that exclusion is a career-ending consequence independent of any prison sentence.
The Meaning of "Willfully" in Anti-Kickback Statute Cases
The AKS does not define "willfully." Federal courts apply the standard definition for willful criminal conduct: acting "voluntarily and purposely, with the specific intent to do something the law forbids, that is with a bad purpose, either to disobey or disregard the law." The Eleventh Circuit applied that definition to the AKS in United States v. Vernon, 723 F.3d 1234 (11th Cir. 2013), and United States v. Starks, 157 F.3d 833 (11th Cir. 1998).
The defendant need not know the AKS exists. In Starks, the Eleventh Circuit held that knowledge of the specific statute is not required. The defendant must know that the conduct itself is unlawful. Vernon reaffirmed that rule and explained the reasoning: kickback arrangements involving medical referrals are inherently wrongful, and not the kind of conduct a person would reasonably expect to be legal.
The 2010 Affordable Care Act amendment at 42 U.S.C. section 1320a-7b(h) codified that rule across all circuits. A defendant need not have actual knowledge of the AKS or specific intent to violate it. The government must still prove that the defendant knew the conduct was wrong. Honest mistake and negligent compliance do not satisfy that standard.
The One Purpose Test
Federal courts have uniformly held that the AKS is violated if even one purpose of the remuneration was to induce referrals, even when other legitimate purposes also motivated the payment. The Third, Fifth, Seventh, Ninth, and Tenth Circuits have all adopted that standard.
The Third Circuit established the rule in United States v. Greber, 760 F.2d 68 (3d Cir. 1985). The court held that the AKS is violated if "one purpose of the payment was to induce referrals," even when the payment also compensates for legitimate services. The court grounded the holding in the statutory phrase "any remuneration," which it read to capture partial inducements because such payments risk unnecessary costs to federal healthcare programs.
The Tenth Circuit adopted the same standard in United States v. McClatchey, 217 F.3d 823 (10th Cir. 2000), and drew a useful line. A provider may lawfully hope for or expect referrals from a counterparty. The statute is violated only when the intent to induce referrals is part of the actual motivation for the payment.
The Seventh Circuit rejected a narrower "primary purpose" alternative in United States v. Borrasi, 639 F.3d 774 (7th Cir. 2011). The court held that the AKS is violated if "part of the payment compensated past referrals or induced future referrals." Inducement need not be the primary motivation. It need only be a motivation.
The Seventh Circuit reaffirmed that position in United States v. Nagelvoort, 856 F.3d 1117 (7th Cir. 2017), rejecting a vagueness challenge to the one purpose standard.
The practical effect: a defendant cannot defeat an AKS charge by showing that an arrangement had legitimate components, that the services were medically necessary, or that referrals would have occurred without the payment. Inducement as one purpose is enough.
The Limit on Inducement: United States v. Sorensen
The one purpose test does not eliminate the government's burden to prove that the payment was made to induce referrals in the first place. The Seventh Circuit made that clear in United States v. Sorensen, 134 F.4th 493 (7th Cir. 2025). The court reversed an AKS conviction and entered a judgment of acquittal.
Sorensen operated a Medicare-registered durable medical equipment distributor. He paid percentage-based fees to advertising and marketing companies that promoted orthopedic braces to Medicare patients. A jury convicted him under 42 U.S.C. section 1320a-7b(b)(2). The district court sentenced him to 42 months in prison.
The Seventh Circuit disagreed with the jury. The advertisers and the manufacturer had no authority to refer patients. They had no special relationship with the physicians who did. They simply pitched a product. On the court's reading of the statute, the AKS reaches payees who can "leverage fluid, informal power and influence" over referral decisions, such as physicians or others positioned to steer patient care. Aggressive advertising falls outside that line.
The decision tracks the Fifth Circuit's United States v. Marchetti and creates a real defense theory in marketing-driven AKS cases. Where the payee has no clinical authority and no relationship that lets it control the referral, the inducement element fails. Sorensen does not protect every marketing arrangement. If the marketer is directed to mislead referring physicians or supply prefilled prescription forms designed to short-circuit the clinical decision, the AKS still reaches the payment.
The Scope of Remuneration
Federal prosecutors and HHS-OIG construe "remuneration" broadly. The term reaches well beyond cash payments to referring physicians. Items prosecuted as kickbacks in recent federal cases include speaker program honoraria, meals and travel, sham consulting arrangements, below-market office rent, equipment loans, marketing services, charitable donations to physician-controlled organizations, and waived patient copayments. HHS-OIG has issued Special Fraud Alerts identifying recurring categories of suspect remuneration.
That breadth creates exposure for arrangements providers perceive as routine. Marketing agreements paid on a per-patient basis, medical director compensation above fair market value, and free administrative services provided to referral sources are all areas where federal prosecutors find kickback theories. A written contract drafted by lawyers, characterized as a consulting or service arrangement, does not preclude an AKS charge.
Statutory Exceptions and Regulatory Safe Harbors
The AKS framework includes two sets of protections. Statutory exceptions appear in 42 U.S.C. section 1320a-7b(b)(3). Regulatory safe harbors appear at 42 C.F.R. section 1001.952. Arrangements that satisfy either are immunized from AKS liability. Arrangements outside both are not automatically unlawful, but they lose the categorical defense and are analyzed on the facts.
Statutory Exceptions
Section 1320a-7b(b)(3) excludes specific payment practices from criminal liability. The recurring categories in federal cases are:
Statutory exceptions bar prosecution when the elements are met in full. A payment that almost satisfies an exception does not satisfy it. Federal prosecutors charge arrangements the defendant believed fit an exception but missed an element.
Regulatory Safe Harbors
The regulatory safe harbors at 42 C.F.R. section 1001.952 operate as affirmative defenses. Strict compliance with every element of a safe harbor immunizes the arrangement. The burden of proving compliance rests with the party invoking the safe harbor.
Two safe harbors recur in federal criminal cases: personal services and management contracts, and space and equipment rental. The Seventh Circuit addressed both in United States v. Nagelvoort, 856 F.3d 1117 (7th Cir. 2017), and United States v. Moshiri, 858 F.3d 1077 (7th Cir. 2017). The Fifth Circuit reviewed the personal services safe harbor in United States v. Hagen, 60 F.4th 932 (5th Cir. 2023), where the court rejected the defendants' request for a jury instruction on the affirmative defense because they failed to put forward sufficient evidence to support it. Substantial compliance is not enough.
Personal Services and Management Contracts Safe Harbor
The personal services safe harbor at 42 C.F.R. section 1001.952(d) protects compensation paid under written agreements for legitimate services. HHS-OIG modified the safe harbor effective January 19, 2021, to add flexibility for compensation methodology and part-time arrangements. The current requirements are:
The 2021 modifications have real consequences. The current rule requires the compensation methodology, not the aggregate compensation amount, to be set in advance. The former requirement that part-time arrangements specify exact schedules, intervals, and charges was eliminated. Hourly rates and other verifiable formulas can now fit within the safe harbor.
Two failure points dominate prosecutions. The first is fair market value. The second is the volume-or-value prohibition. Medical director agreements, marketing contracts, and consulting arrangements that compensate above market or that tie payment to referral activity fall outside the safe harbor regardless of how the written agreement is drafted.
Space and Equipment Rental Safe Harbor
The rental safe harbor at 42 C.F.R. section 1001.952(b) and (c) protects rental payments for office space and equipment when:
Federal prosecutors examine below-market office rent provided to referring physicians as a textbook kickback structure. Above-market rent paid to a physician landlord is examined the same way. Either deviation from fair market value forfeits safe harbor protection and provides the government with circumstantial evidence of an inducement purpose.
Other Frequently Invoked Safe Harbors
The regulations include additional safe harbors that recur in federal criminal cases:
Burden of Proof and Case-by-Case Analysis
Two rules control how safe harbors operate at trial. First, the burden of establishing compliance rests with the defendant. The defendant must produce evidence that every element of the safe harbor was satisfied. Second, failure to meet a safe harbor does not establish a violation. The arrangement is analyzed on its facts, and the government must still prove every element of the offense, including willfulness and inducement purpose, beyond a reasonable doubt.
That distinction creates room for the defense. Even when strict safe harbor compliance is unavailable, documented effort to structure an arrangement around the safe harbor is direct evidence against willfulness. A defendant who executed a written agreement, set compensation methodology in advance, obtained a fair market value opinion, and excluded referral-based terms is not easily portrayed as acting with corrupt purpose.
Current Federal Enforcement Priorities Under the Anti-Kickback Statute
DOJ has identified specific AKS categories as enforcement priorities for 2025 and 2026, reflecting the focus areas of DOJ's white collar enforcement memo and the new DOJ-HHS False Claims Act Working Group.
Charges That Routinely Accompany Anti-Kickback Statute Counts
AKS counts rarely stand alone. DOJ layers multiple charges across distinct theories, and sentencing exposure compounds under the Federal Sentencing Guidelines.
The layering carries real consequences at trial. An acquittal on the AKS count does not foreclose conviction on the healthcare fraud, wire fraud, or conspiracy counts based on the same conduct. Defense counsel must address every count on its own elements.
How Federal Anti-Kickback Statute Investigations Develop
AKS prosecutions are built from financial records, claims data, and cooperating witnesses. The investigation progresses through identifiable stages. By the time a target receives a target letter or learns of an indictment, the government has typically been working the case for months or years.
| Stage | What Happens | What It Means |
|---|---|---|
| Data Analytics Flag | The Health Care Fraud Data Fusion Center combines CMS claims data, HHS-OIG investigative information, and FBI intelligence to identify referral concentration, billing volume tied to specific marketers, and statistical outliers. | Often the earliest stage. The provider may have no visible indication that scrutiny has begun. |
| UPIC Audit or Prepayment Review | A Unified Program Integrity Contractor requests medical records and financial information. CMS may impose prepayment review of future claims. | An early-warning sign. Documents and statements provided may be shared with HHS-OIG and DOJ. |
| Qui Tam Whistleblower Complaint | A current or former employee files a sealed FCA complaint. DOJ may investigate under seal for years. | The target will not know about a sealed complaint. Unexplained departures and unusual audit activity may be signs. |
| HHS-OIG and FBI Investigation | Federal agents interview current and former employees, marketers, patients, and business associates. Cooperating witnesses are recruited. | Witness contact with staff signals an advanced investigation. Targets are often unaware of the scope until later. |
| Grand Jury Subpoenas and Search Warrants | DOJ issues grand jury subpoenas for financial records, contracts, emails, and claims data. Search warrants may issue for business premises, personal devices, and electronic accounts. Apple iCloud subpoenas and search warrants are used to recover text messages, iMessages, photographs, and backups of third-party messaging applications that defendants believed had been deleted from the device. | Confirms an active criminal investigation. Search warrants often signal the case is moving toward indictment. Cloud-stored communications produced by Apple, Google, and Microsoft are a recurring source of willfulness evidence. |
| Indictment | A grand jury returns charges. The government may also seek pretrial restraint of assets through forfeiture allegations. | The case has reached the charging stage. Defense counsel must address bond, asset preservation, and pretrial litigation. |
Key Defense Strategies in Anti-Kickback Statute Cases
AKS cases are defensible. The willfulness element is the highest legal burden the government carries, and the technical complexity of healthcare commercial arrangements creates real defense opportunities.
Attacking the Willfulness Element
The government must prove that the defendant acted knowingly and willfully. Negligence and good-faith mistake do not satisfy that standard. The defense develops evidence that the defendant lacked the corrupt mental state the statute requires.
Useful willfulness evidence in AKS cases includes contemporaneous communications with counsel, written compliance policies, fair market value analyses, documentation of safe harbor structuring, and testimony from compliance personnel. A defendant who consulted counsel, disclosed the relevant facts, and followed the advice has a strong argument against willfulness.
Disputing the Inducement Purpose
The government must prove that the remuneration was intended to induce referrals or generate federal healthcare business. Documentation that medical director compensation was tied to services performed at fair market rates, that consulting fees corresponded to deliverables, or that marketing payments were calibrated to non-referral metrics weakens the inducement theory.
The one purpose test cuts against this defense, but only if the government can establish that inducement was one purpose. Sorensen sharpens the analysis in marketing and distribution cases: where the payee has no authority over patient care and no special relationship with a referral source, payments are not made to induce "referrals" within the meaning of the statute.
Safe Harbor Compliance and Good-Faith Effort
Strict compliance with a safe harbor is a complete defense. Substantial compliance is not a legal defense, but it is directly relevant to willfulness. A defendant who structured an arrangement to comply with the personal services or rental safe harbor can argue against willfulness even if a technical element was missed.
Challenging the Government's Financial Theory
Federal prosecutors present AKS schemes through summary witnesses, charts, and data analytics. Each layer is open to challenge. Comparisons of payment amounts to fair market value depend on the comparison set the government selects. Data analytics that flag a provider as an outlier rely on benchmarking choices that can be tested through cross-examination and defense expert testimony.
Advice of Counsel
Reliance on advice of counsel is one of the strongest defenses available against the willfulness element. The defense requires evidence that the defendant sought legal advice in good faith before acting, disclosed the relevant facts to counsel completely and accurately, received advice that the conduct was lawful, and acted in reasonable reliance on that advice. A defendant who consulted experienced healthcare counsel, presented the actual structure of the arrangement, and followed the advice given is not easily portrayed at trial as having acted with corrupt purpose.
The defense has practical limits. Asserting advice of counsel waives the attorney-client privilege as to the subject of the advice and exposes the underlying communications to government scrutiny. The defense is unavailable where counsel was not given complete facts, where counsel was used as a vehicle to paper over the scheme rather than to provide independent analysis, or where the defendant disregarded the advice. Decisions about whether and when to raise the defense require careful balancing of the privilege costs against the value of the willfulness argument at trial.
Why Trial Experience Matters in Anti-Kickback Statute Defense
Anti-Kickback Statute cases go to trial more often than other federal white collar cases, and the reason is the collateral consequences of conviction. A guilty plea to AKS triggers mandatory exclusion from federal healthcare programs under 42 U.S.C. section 1320a-7(a), loss of medical licensure in most states, asset forfeiture, and reputational consequences that follow the defendant for the rest of a career. For physicians, executives, and corporate principals, those collateral consequences often exceed the value of the offered prison-term reduction. The case proceeds to trial.
At trial, technical command of the AKS elements is the baseline. What wins is the ability to dismantle the government's proof through cross-examination of cooperating witnesses, summary agents, and data analytics experts, and through the strategic presentation of defense evidence. The willfulness element is attacked through the defendant's contemporaneous communications and compliance documentation. The inducement element is attacked under Sorensen, Marchetti, and the testimony of the alleged referral sources. Safe harbor structuring and advice of counsel are presented to the jury as evidence of good faith. Each of those is a trial skill, not a doctrinal one.
Scott Armstrong served as a leading trial attorney in the Healthcare Fraud Unit and later as Director of the Appalachian Regional Prescription Opioid (ARPO) Strike Force and Assistant Chief of the Market Integrity and Major Frauds Unit at the DOJ Fraud Section. He has tried sixteen complex federal cases, including nine healthcare fraud trials, and served as lead trial counsel in DOJ healthcare fraud prosecutions involving over $600 million in alleged false claims.
Drew Bradylyons served as an Assistant Chief of the Healthcare Fraud Unit at the DOJ Fraud Section and supervised the unit's South Florida Strike Force. He investigated and supervised cases involving more than $1 billion in fraudulent claims to Medicare, Medicaid, and TRICARE, many built on Anti-Kickback Statute theories. He later served as Chief of the Financial Crimes and Public Corruption Unit at the U.S. Attorney's Office for the Eastern District of Virginia.
Together with Special Counsel Andrea Savdie, the firm's attorneys have over 25 years of combined DOJ experience and 25 federal jury trials, including 17 healthcare fraud cases involving over $2.8 billion in alleged false claims. That trial experience drives every stage of an AKS defense, from the response to a target letter through the verdict.
Frequently Asked Questions
How does the government prove willfulness in an Anti-Kickback Statute case when there is no direct evidence of intent?
Federal prosecutors prove willfulness almost entirely through circumstantial evidence. The most important category is electronic communications. Emails, text messages, Slack and Microsoft Teams chats, and notes from internal meetings often contain references to legality, compliance concerns, or efforts to hide a payment. Prosecutors also use payment structuring through nominee entities, sham consulting agreements that mask referral fees, cash payments outside the regular books, and post-incident document creation.
Ephemeral messaging applications such as Signal, WhatsApp, and Telegram are an active enforcement area. The DOJ Criminal Division's Evaluation of Corporate Compliance Programs requires prosecutors to evaluate how a company handles disappearing messages, and the January 2024 joint DOJ-FTC preservation guidance warned that failure to produce ephemeral communications may support obstruction charges. The use of disappearing messages by AKS targets and their counterparties is itself treated as evidence of consciousness of wrongdoing. Defense counsel respond with evidence of advice-of-counsel reliance, contemporaneous fair market value analysis, and consistent treatment of similar non-referring counterparties.
Does the Anti-Kickback Statute apply to payments made to marketers and advertisers who are not physicians?
It depends on whether the marketer or advertiser is in a position to influence patient care decisions. In United States v. Sorensen, 134 F.4th 493 (7th Cir. 2025), the Seventh Circuit reversed an AKS conviction and entered a judgment of acquittal where a DME distributor paid percentage-based fees to advertising and marketing companies that promoted orthopedic braces to Medicare patients. The court held that the payments were not made to induce "referrals" within the meaning of the statute because the advertisers had no authority to refer patients and no special relationship that let them "leverage fluid, informal power and influence" over healthcare decisions. Aggressive advertising alone does not qualify.
Sorensen follows the Fifth Circuit's United States v. Marchetti and provides a defense theory in marketing-driven cases. The analysis does not protect every marketing arrangement. Where a marketer is directed to mislead referring physicians, supply prefilled prescription forms, or otherwise control the referral decision, the AKS still reaches the payment.
What is a target letter in an Anti-Kickback Statute investigation?
A target letter is written notice from DOJ that an individual is a target of a federal grand jury investigation. In an AKS case, a target letter identifies the statute under investigation, often 42 U.S.C. section 1320a-7b alongside companion charges under 18 U.S.C. sections 1347, 1343, and 1349, and frequently invites the recipient to testify before the grand jury. The letter signals that prosecutors believe substantial evidence already exists that the recipient committed the offense.
A target letter is distinct from a subject letter, which signals a lower investigative posture, and from a witness letter, which signals that the recipient is not currently believed to be involved in the criminal conduct. The decision to accept or decline the grand jury invitation, the scope of any proffer, and the assertion of Fifth Amendment rights are critical strategic decisions made at this stage. AKS investigations also frequently proceed without target letters, particularly when the government anticipates a search warrant or charging decision.
What is the difference between the Anti-Kickback Statute and the Eliminating Kickbacks in Recovery Act (EKRA)?
The Eliminating Kickbacks in Recovery Act, codified at 18 U.S.C. section 220, was enacted in 2018 as part of the SUPPORT Act. EKRA prohibits remuneration paid to induce referrals to a recovery home, clinical treatment facility, or laboratory. Three differences matter most. First, EKRA reaches services covered by any healthcare benefit program, including private insurance and cash-pay, while the AKS reaches only federal healthcare program business. Second, EKRA carries penalties of up to 10 years and a fine of up to $200,000 per violation, twice the AKS fine ceiling. Third, EKRA's safe harbors are narrower than the AKS safe harbors, particularly for employee and contractor compensation, and do not protect volume-based commission structures.
The Ninth Circuit issued the first appellate interpretation of EKRA in United States v. Schena, No. 23-2989 (9th Cir. July 11, 2025), affirming a laboratory owner's conviction. The court held that EKRA reaches payments to marketing intermediaries, not only payments to referring physicians, and that percentage-based marketing compensation is not a per se violation absent evidence that the marketers misled referring providers. Petition for certiorari was filed in October 2025. Investigations into laboratories, sober homes, and substance use disorder treatment facilities now routinely include both AKS and EKRA counts.
What are the penalties for an Anti-Kickback Statute conviction?
Each AKS violation under 42 U.S.C. section 1320a-7b carries up to 10 years of imprisonment, a fine of up to $100,000, or both. The Bipartisan Budget Act of 2018 raised the maximum from five to 10 years. Indictments typically charge multiple counts, and the Federal Sentencing Guidelines aggregate financial loss across counts in setting the offense level.
Beyond imprisonment and fines, a conviction triggers mandatory exclusion from federal healthcare programs under 42 U.S.C. section 1320a-7(a) for a minimum of five years. State licensing boards typically initiate disciplinary proceedings. Asset forfeiture is common where the government can trace proceeds.
Can an Anti-Kickback Statute investigation run in parallel with a CMS payment suspension?
Yes. CMS may suspend Medicare or Medicaid payments based on a credible allegation of fraud under 42 C.F.R. section 405.371(a)(2) while DOJ pursues a criminal AKS investigation. The suspension regulation requires CMS to consult with HHS-OIG and DOJ before imposing the suspension, which means DOJ is typically aware of the action and may already have an open criminal file. Suspended payments are first applied to any overpayment determined by the Medicare contractor or CMS, then to any other obligation to CMS or HHS. Excess funds are released only after those obligations are satisfied. 42 C.F.R. section 405.372(e).
Parallel proceedings create real risk. Statements made in a CMS rebuttal submission, in administrative appeal filings, or in responses to UPIC audit requests can be used by federal prosecutors in the criminal case. Decisions about waiver of privilege, document production, and witness availability must account for both tracks at the same time.
How do federal prosecutors recover deleted text messages, iCloud data, and encrypted communications in an Anti-Kickback Statute investigation?
Federal investigators rarely rely on a single device. Apple, Google, and Microsoft retain substantial communications data in cloud backups that can be obtained through grand jury subpoenas and search warrants. Apple iCloud backups frequently contain iMessages, SMS messages, photographs, contacts, and copies of data from third-party applications, even when the user believed those items had been deleted from the phone. Google Drive and Gmail accounts hold similar material. Microsoft 365 backups preserve emails, Teams chats, and OneDrive files.
Encrypted and ephemeral messaging applications add complexity but rarely block the investigation entirely. Federal prosecutors recover content from the recipient's device, from cooperating witnesses who screenshot or forward messages, from cloud backups that captured the application's data, and from civil discovery in parallel False Claims Act cases. The use of Signal, WhatsApp, or Telegram during the relevant period is itself often offered as circumstantial evidence of consciousness of wrongdoing.
What is the statute of limitations for an Anti-Kickback Statute charge?
Under 18 U.S.C. section 3282, the government must indict within five years of the offense. Each payment can constitute a separate AKS offense, so the relevant date is the date of payment, not the date of any underlying referral or claim. Conspiracy charges under 18 U.S.C. section 1349 or 18 U.S.C. section 371 run from the last overt act, which extends the period substantially in multi-year schemes.
Conduct outside the limitations window may still be admissible under Federal Rule of Evidence 404(b) and to establish the existence and scope of a charged conspiracy. The limitations analysis in AKS cases is fact-intensive and often turns on the precise date of each remuneration payment, the existence and duration of any conspiracy, and tolling agreements.
Why does trial experience matter in Anti-Kickback Statute defense?
AKS cases proceed to trial more often than other federal white collar cases. The reason is the collateral consequences of conviction. A guilty plea triggers mandatory exclusion from federal healthcare programs under 42 U.S.C. section 1320a-7(a), loss of medical licensure in most states, asset forfeiture, and reputational consequences that follow the defendant for the rest of a career. For physicians, executives, and corporate principals, those consequences often outweigh the value of a plea-based sentence reduction, and the case proceeds to trial.
At trial, what wins is the ability to dismantle the government's proof. The willfulness element is attacked through cross-examination of cooperating witnesses and through the defendant's own contemporaneous communications and compliance documentation. The inducement element is attacked through cross-examination of alleged referral sources and the case law in Sorensen and Marchetti. Safe harbor structuring and advice-of-counsel evidence are presented to the jury as good-faith defenses. Scott Armstrong served as a leading trial attorney in DOJ's Healthcare Fraud Unit before directing the ARPO Strike Force. Drew Bradylyons served as Assistant Chief of the Healthcare Fraud Unit. Together they have tried 25 federal jury cases, 17 of them healthcare fraud trials, involving more than $2.8 billion in alleged false claims.
Facing a Federal Anti-Kickback Statute Investigation?
Armstrong & Bradylyons PLLC defends physicians, executives, marketers, and corporate entities in federal Anti-Kickback Statute investigations and prosecutions nationwide. Scott Armstrong served as a leading trial attorney in DOJ's Healthcare Fraud Unit and Director of the ARPO Strike Force. Drew Bradylyons served as Assistant Chief of the Healthcare Fraud Unit. They built, tried, and supervised healthcare fraud and AKS prosecutions at the DOJ Fraud Section, and now apply that experience to healthcare fraud defense for clients facing federal investigation and indictment.
