Stark vs Anti-Kickback: The Key Differences

Stark vs Anti-Kickback: The Key Differences

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In today’s video, we return to the topic of Stark Law to discuss the differences between Stark and the Anti-Kickback Statute, because many of our clients have asked us about how these two features of the regulatory landscape relate to one another.

I’m Michael H. Cohen, founding attorney of the Cohen Healthcare Law Group. We’ve advised over a thousand healthcare industry clients on healthcare and FDA legal issues. Today, I’m going to explain some of the key differences between Stark Law and the Anti-Kickback Statute. By the end of this video, you’ll have a much clearer understanding of what exactly each one does and how they relate to one another.

To begin, we have to keep in mind that Stark Law prohibits making referrals where the referring physician has a financial interest, so that’s something you can violate all on your own. The Anti-Kickback Statute prohibits making referrals in exchange for anything of value, so a violation would be in the form of an arrangement with another person or entity.

Beyond that most general distinction, there are also others to be aware of.  The Anti-Kickback Statute covers many types of healthcare providers, including nurses. Stark Law just applies to those practitioners who have advanced education such as physicians, chiropractors, and dentists.

Another difference is whether the violation was done knowingly.  The Anti-Kickback Statute requires that the physician intend to violate the lawStark Law applies even if the medical practitioner just should have known they were violating the law.

The two also diverge when it comes to exceptions. If you’ve watched some of our other videos, you’ll know that Stark Law has several areas of exceptions, and if they apply, a referral is exempted. The Anti-Kickback Statute doesn’t have specific exceptions the way Stark Law does. It does, however, use the phrase “safe harbor” to cover many types of referral actions that are protected.

Finally, the Anti-Kickback Statute is a criminal law and it gives prosecutors the discretion to decide if they will bring charges. Stark Law, on the other hand, is civil law.  However, medical practices can be civilly charged for violating either one.

Thanks for watching. We hope this video has answered some of your questions about the differences between Stark Law and the Anti-Kickback Statute. Of course, there is so much more detail that we didn’t cover in this overview video, like the “safe harbor” language in the Anti-Kickback Statute.

Here’s to the success of your healthcare venture, we look forward to speaking with you soon.


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