October 12, 2011 — Commentary
Craig B. Garner, Esq.
Copyright © 2011 Thomson Reuters — Reprinted with Permission
Under its aegis, the 2010 Patient Protection and Affordable Care Act, more commonly referred to as Health Care Reform, Pub. L. No. 111-148, clarified the criminal-intent requirement under the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b.
Before PPACA, federal courts applied different standards of intent, both general and specific, in determining the existence of violations under the AKS. Section 6402(f)(2) of PPACA amends the AKS by stating, in part:
With respect to violations of this section, a person need not have actual knowledge of this section or specific intent to commit a violation of this section.
Like it or not, congressional design is clear, and this general-intent threshold now serves as the national standard for the AKS after PPACA. While constitutional scholars may take aim at this seemingly benign amendment when they eventually tire of health care reform’s individual insurance mandate, health care and criminal law practitioners are better served by understanding the historical landscape leading up to Section 6402(f)(2). By tracing the evolution of the AKS, as well as the companion False Claims Act, 31 U.S.C. § 3729, and the Ethics in Patient Referrals Act, 42 U.S.C. § 1395nn (more commonly referred to as Stark I and Stark II), practitioners may have a stronger perspective with which to offer their clients advice within the rapidly changing climate of health care reform, rather than relying upon cautionary missives that speak to this watered-down standard of scienter.
Some legal history
Actus non facit reum nisi mens sit rea. (“The act is not culpable unless the mind is guilty.”) [FN1]
With a few exceptions, historical discussion of criminal law has tended to combine bad actions with a previously existing desire to effectuate the same. Most often in the context of ordinary, visible crimes such as murder, battery, robbery, arson, etc., a common condition precedent to conviction for such offenses was specific intent. [FN2] This mental element exists as a subset within two separate and distinct types of crimes: those prohibited by statutory authority (malum prohibitum, such as parking regulations, copyright laws and the tax code), and those plainly in violation of society’s standards (malum in se, such as rape and murder). … Read more →