Health Care Fraud

The latest in the health care fraud and abuse saga - a bold attempt to legalize  kickbacks. Drug maker Amgen is attempting to get the United States Supreme Court to rule that certain kickbacks in the drug industry are entirely legal. Amgen has petitioned the Court to hear a case where it is accused of providing physicians with free supplies (overfill) of its injectable drug, Aranesp. The physicians bill Medicare and Medicaid for the drugs even though they were provided free of charge by Amgen, so the sample drugs provide a financial incentive to prescribe Aranesp, which seems to be precisely the reason that Congress passed the AntiKickback Statute. Amgen, however, is appealing on "technical" grounds, asserting that claims are not fraudulent if the payor (CMS, or the fiscal intermediary acting on its behalf) goes ahead and pays them anyway, or, alternatively, that the payments don't violate AKS unless a specific federal regulation expressly prohibits the payment. Amgen is counting on a conservative Supreme Court that is loath to 'burden' the business world with unnecessary regulation. However, the AKS is not merely regulatory, it creates a criminal offense, and is intended to keep drug companies from influencing a health care provider's choice of treatment plans. It remains to be seen if the Court will accept this appeal. (The Supreme Court only accepts a very small percentage of certiorari petitions.) But stay tuned - Amgen has come equipped with the usual top flight legal talent experienced in defending allegations of health care fraud. For more on this subject, see our current article in Health Care Fraud news.