The Office of the Inspector General (OIG) of the federal Department of Health and Human Services has announced that it will not count private health plans purchased through state or federal health care exchanges as "federal health care programs" under the federal Anti-Kickback Statute, even if the government subsidizes the plans through tax credit.
The Anti-Kickback Statute makes illegal the payment or acceptance of any remuneration in exchange for referring patients for items or services payable by health plans funded through the federal government. Punishments include fines, exclusion from participation as a Medicare or Medicaid provider, and regurgitation of reimbursements for illegally referred services.
Although state-level anti-kickback laws might still apply, the OIG preserved the status quo by refusing to extend federal anti-kickback law to traditionally private, non-federal plans. Nevertheless, since private parties can sometimes sue providers regarding Anti-Kickback violations, the courts may ultimately decide whether the exchange plans relying on federal subsidies count as federal health care programs under the Anti-Kickback Statute.