Tutorial Questions Week 3
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The University of Tennessee, Knoxville *
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3505
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Law
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Jan 9, 2024
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Tutorial Questions Week 3
TQ 3.1:
Framework questions:
a)
Is the Anti-Kickback Statute civil or criminal?
-
The Anti-Kickback statue is criminal.
b)
What is the scienter or intent requirement?
-
Actual knowledge or intent is not required.
c)
What are the specific behaviors that are prohibited by the Anti-Kickback Statute?
-
The specific behaviors prohibited by the Anti-Kickback Statute are:
a)
knowingly and
willfully soliciting, receiving, offering, or paying any renumeration directly or
indirectly in cash or in kind in return for referring or actively referring an individual
to a person for the furnishing of any item or service for which payment may be made
in whole or in part under a Federal health care program; in return for or actively
purchasing, leasing, ordering, or recommending any good, facility, service or item for
which payment may be made in whole or in part under a Federal health care program.
d)
What are the potential sanctions for violating the Anti-Kickback Statute?
-
The potential sanctions for violating the Anti-Kickback Statute are a felony
conviction with a fine of not more than $25,000 or imprisonment for no more five
years, or both.
Anti-Kickback Statute 42 U.S.C.A. §1320a-7b
TQ 3.2:
What was the holding in U.S. v. Greber?
-
The court held that if one purpose of the payment was to induce future referrals, the
Medicare statute has been violated.
U.S. v. Gerber 760 F.2d 68 (3
rd
Cir. 1985)
TQ 3.3:
What remuneration did Baptist Hospital pay the Doctors LaHue for their referrals of
nursing home residents?
-
Baptist Hospital offered to pay the LaHue doctors $75,000 in return for referrals of
Medicare and Medicaid patients.
U.S. v. McClatchey, 217 F.3d 823 (10
th
Cir. 2000)
TQ 3.4:
What arguments did McClatchey make with regard to the inference of intent? How did
the court respond to these arguments? What did the court say would indicate McClatchey was
not knowingly and willfully doing something wrong?
-
First, McClatchey argued that his surprise at learning about the failure to provide services
and his directive to McGrath and legal counsel to investigate and remedy the situation fail
to establish criminal intent. The court responded that McClatchey knew the hospital staff
did not want or need some of the services specified in the contract, so a jury could
reasonably infer that McClatchey did not care whether the services were needed or
performed as long as LaHue continued to refer patients.
-
Second, McClatchey argued that his actions throughout the negotiation process cannot
give rise to an inference of his criminal intent because they were entirely directed and
controlled by the legal counsel. The court responded the McGrath testified that he and
McClatchey told the lawyers what services to include in the contracts, not visa versa,
which would lead the jury to reasonably determine that both McClatchey and McGrath
had the decision to remove a minimum hour provision from the contract after the LaHues
objected to the requirement and the inference of intent based on the decision.
-
The court indicated that if a defendant sought the advice of an attorney considered
competent regarding the lawfulness of future conduct, and made a full and accurate report
to the attorney of all facts and acted in accordance with the attorney advice, then the
defendant would not be knowingly and willfully doing wrong.
U.S. v. McClatchey, 217 F.3d 823 (10
th
Cir. 2000)
TQ 3.5:
What was the holding in U.S. v. Starks?
-
The court upheld that knowledge of the Anti-Kickback Statute is not required and that the
court did not error or mislead the jurors.
U.S. v. Starks, 157 F.3d 833 (11 Cir. 1998)
TQ 3.6:
How did the court in U.S. v. Starks explain the concept of willfully acting in violation of
the law?
-
The court explained the concept of willfully acting as an act committed voluntarily and
purposely, with the specific intent to do something the law forbids by disregarding or
disobeying the law.
U.S. v. Starks, 157 F.3d 833 (11 Cir. 1998)
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