No One Statute Should Have Too Much Power: How Electing Not to Amend 42 U.S.C § 1320(a)–7(b) May Frustrate the Purpose of the Patient Protection and Affordable Care Act

Abstract

The over breadth of the Federal Anti-Kickback statute as amended by the Patient Protection and Affordable Care Act (PPACA) holds dangerous implications for the future of the health care marketplace. When a statute permits criminal, civil and administrative punishment for an overbroad category of innocuous actions, such a statute must also take into account the specific, rather than general, intent of the actor, or the ensnaring of innocents is ultimately likely to result. Historically, the statute required a finding of specific intent to be found to uphold a violation of the statute. With the passing of Greber v. US and the Federal Anti-kickback statute’s amendment by the PPACA to encompass almost any act not enumerated as a safe harbor, prosecutors have been given remarkable power to decide when and who to prosecute, and almost anyone participating in the health care marketplace may find their self at risk of violating the law. Prosecutors have also been given the remarkable power to decide what constitutes genuine patient protection as we enter into a new chapter of American health care