Anti-Kickback Leniency During COVID-19 Pandemic

Among the onslaught of waivers and policy statements on enforcement discretion coming out of the federal agencies over the past month to provide flexibility in the fight against coronavirus disease 2019 (COVID-19), the Department of Health and Human Services Office of Inspector General (OIG) has announced a policy to exercise its enforcement discretion to not impose administrative sanctions under the federal Anti-Kickback Statute (AKS) when certain conditions are met. Importantly, this enforcement discretion does not apply carte blanche to all conduct that otherwise would violate AKS. OIG is limiting this enforcement discretion to only 11 of the 18 blanket waivers for the Stark Law that the Centers for Medicare & Medicaid Services (CMS) published on March 30, 2020. And, perhaps most importantly, OIG is retaining the right to enforce the AKS with respect to any relationship that creates fraud and abuse concerns.

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