Is accepting a gift card from a vendor considered a kickback?
Full Question:
Answer:
Many companies have a policy regarding the acceptance of gifts from vendors and convey that policy to employees upon hiring. Accepting or soliciting gifts from vendors can be viewed as a form of bribery and go against standard business ethical practices.
Kickbacks are undisclosed payments, gifts, or services offered in return for something of value, increased business, or business referral. It may be a violation to receive or solicit any remuneration, including a gift, cash, bribe, rebate, or discount in return for sending business to the vendor.
If your employment involved any federally funded program, including Medicare and Medicaid, then it would be held to the federal anti-kickback statute (42 U.S.C. 1320a-7(b)).
This statute prohibits individuals or entities from knowingly and willfully offering, paying, soliciting or receiving remuneration to induce referrals of items or services covered by Medicare, Medicaid or any other federally funded program (except the Federal Employees Health Benefits Program). Some courts have interpreted the law to cover any arrangement in which one purpose of the remuneration is to induce or compensate for program referrals. However, one federal appellate court has ruled that to prove a violation of the anti-kickback statute, the government must prove that a defendant had a specific intent to disobey the law.
A violation of the anti-kickback law is a felony offense that carries criminal fines of up to $25,000 per violation, imprisonment for up to five years and exclusion from government health care programs.
The Balanced Budget Act of 1997 created an alternate sanction. The government may levy a civil fine of up to $50,000 for each violation of the statute and an assessment of three times the amount of the kickback. Previously, the only anti-kickback enforcement tools available to the OIG and DOJ were excluding a physician from the Medicare and Medicaid programs, which is a lengthy process, or seeking conviction under the higher burden of proof required for criminal cases. The government likely will use the new "intermediate sanction" authority more aggressively in anti-kickback cases because it will be easier to impose.
To violate the anti-kickback law, one must knowingly and willfully offer or pay, solicit or receive remuneration in exchange for referring a customer for an item or service payable by the government, or for ordering or arranging for ordering any such item or service.
North Carolina is one of several states that has its own anti-kickback statute applicable in the healthcare service industry.
