Comparing the Stark Law to the Federal Anti-Kickback Statute

Physicians often want to make referrals for patients who need additional care they cannot provide. However, it is not always legal for physicians to make referrals and it can be difficult for a physician to know when a referral is permitted and when it is prohibited under federal law.

This is because there are two federal laws that apply to some physician referrals: the Stark Law and the Federal Anti-Kickback Statute. These laws have some similarities but also some key differences that are worth understanding.

Prohibited referrals

The Stark Law prohibits physicians from referring patients receiving Medicare or Medicaid benefits to other physicians or health care facilities that they have a financial relationship with. It also prohibits health care providers from billing the government for services provided due to an illegal referral.

In contrast, the Federal Anti-Kickback Statute prohibits physicians from offering any financial benefit to anyone or receiving any financial benefit from a referral if doing so would mean they would be submitting a claim for payment with any federal health care program, not just Medicare or Medicaid.

Application

The Stark Law only applies to Medicare and Medicaid and only applies to specific health services.

In contrast, the Federal Anti-Kickback Statute applies to any federal health care program and applies to any services or items that would be paid for by any federal health care program.

Liability

Under the Stark Law, physicians can be held strictly liable for overpayments. This means that it does not need to be shown they acted with intent.

However, for civil penalties to apply under the Stark Law in other circumstances, the prosecution must prove that the defendant intended the violation.

In contrast, it is required to prove a physician intended to violate the Federal Anti-Kickback Statute. The physician must have acted knowingly and willfully when violating the statute.

Applicable exceptions

There are some exceptions under the Stark Law in which health care providers can give referrals.

In contrast, there are only voluntary safe harbors under the Federal Anti-Kickback statute that health care providers can use as defenses in subsequent cases.

Violations

Violations of both the Stark Law and the Federal Anti-Kickback Statute can result in civil penalties. However, violations of the Federal Anti-Kickback Statute can also result in criminal sanctions.

So, while these two laws have some similarities, there are important differences as well. In either case, health care providers need to be extremely careful when giving out referrals, to ensure they are not subjecting themselves to potential litigation.