Reining in the Anti-Kickback Statute? Commission-Based Payments and the Relevant Decisionmaker Test
- August 01, 2020
- Scott R. Grubman , Chilivis Grubman
Over the last number of years, the federal Anti-Kickback Statute (AKS)1 has solidified its place as one of the federal government’s most useful tools in health care fraud and abuse prosecutions, both criminal and civil. This is especially true when it comes to investigations involving entities that rely on sales representatives to market their products and services, such as pharmacies, laboratories, and home health agencies. In recent years, the federal government has prosecuted dozens of entities and individuals on the theory that commission-based payments to these marketing representatives are unlawful kickbacks in violation of the AKS.
From this enforcement landscape have arisen a number of federal court opinions discussing the scope of the AKS and what type of arrangements the statute was designed to prohibit. This article discusses the “relevant decisionmaker” test, which the Fifth Circuit created in 2004 and various other courts have considered in deciding the scope of conduct that can be punished under the AKS.
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