Author: Chinelo Diké-Minor
Anti-kickback laws—laws prohibiting payments to induce or reward referrals of health care—are a significant tool in the government’s arsenal against health care fraud. However, although a majority of Americans have health coverage through private health insurance, the primary U.S. law addressing kickbacks, the Anti-Kickback Statute, protects only government health insurance plans (and not all of them at that). To date, the story of Congress’s attempts to extend the protections of the Anti-Kickback Statute to private health insurance plans has not been told. This article tells that untold story, a story that centers on the multiple unsuccessful—but bipartisan—efforts during the Clinton health care reform era to expand the Anti-Kickback Statute’s protections to private plans. Significantly, these efforts received support from law enforcement and the private insurance industry. It then tracks continued, albeit less in-depth, discussions of whether the Anti-Kickback Statute applied to private plans on the 2010 Affordable Care Act’s (“ACA”) and it discusses the passage, in 2018, of a second criminal anti-kickback law, the Eliminating Kickbacks in Recovery Act (“EKRA”), which with little to no discussion, took a different approach, and included both government and private plans in its protections, but only as it pertains to a limited subset of opioid-related activities. This article notes that in light of all the support from law enforcement and the private sector for expanding the Anti-Kickback Statute to private plans, EKRA’s passage, may signify a willingness by Congress to reconsider the reach of the Anti-Kickback Statute. This article is the first in a two-part series on U.S. anti-kickback laws.