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prohibited everything they seemed to prohibit. There were several court
challenges to the constitutionality of these laws on the legal basis that they are
too broad and too vague to put the defendant on clear notice of that what is
prohibited. The real challenge was that these laws ban business as usual and that
cannot be what Congress meant to do. One of the first cases dealt with the owner
of a laboratory service, Greber, that provided Holter monitors. [Greber, 760 F.2d
68.] These monitors were ordered by cardiologists. Greber’s business fitted them
to the patient, collected the data, and prepared the data for reading by the
ordering cardiologist. The ordering cardiologist was paid a consultant’s fee for
analyzing a patient’s Holter monitor data. In the defendant’s criminal prosecution
for fraud, the government asserted that this fee was an illegal inducement to
persuade physicians to use Greber’s services.
Greber argued that these were not illegal inducements to refer patients but
legitimate fees for evaluating the Holter monitor data. The court’s record does not
indicate that these consultants’ fees were higher than the fee that would have
been paid to a cardiologist who was retained to analyze the data but who had not
ordered a Holter monitor. There was evidence, however, that some physicians
received consulting fees when Greber had already evaluated the Holter monitor
data. Perhaps most telling for the government’s case was Greber’s own testimony
in a related civil case: “In that case, he had testified that … if the doctor didn’t get
his consulting fee, he wouldn’t be using our service. So the doctor got a
consulting fee.”
The Court found that “if the payments were intended to induce the physician to
use Cardio-Med’s services, the statute was violated, even if the payments were
also intended to compensate for professional services.” This interpretation was
upheld in a subsequent case in which the Court found that “the jury could convict
unless it found the payment ‘wholly and not incidentally attributable to the
delivery of goods or services.’” [United States v. Kats, 871 F.2d 105 (9th Cir.
1989).] This ruling made it clear that the prohibited conduct was any payment
that accompanied a referral, irrespective of whether the physician receiving the
payment provided some goods or services in return.
A case involving payments allegedly intended to influence a decision to award an
ambulance contract approved of the Greber decision and extended it to cover
subsequent modifications that had been made in the law. [United States v. Bay
State Ambulance & Hosp. Rental Serv., Inc., 874 F.2d 20 (1st Cir. 1989).] This
case directly considered the constitutionality of the Medicare fraud and abuse law:
“Defendants next claim that, if we read the Medicare Fraud statute to criminalize,
under certain circumstances, reasonable payment for services rendered, the
statute becomes unconstitutionally vague.” [Bay State at 32.] The Court rejected
this reasoning, finding that Congress’s broad power to regulate commerce
included the power to prohibit practices that might induce referrals, even if they
had other, proper, motives. [Holthaus D. Courts broadly interpret antikickback
laws. Hospitals. 1989;63:44.] All subsequent cases have upheld these decisions.
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