CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, March 26, 2012

Krause on Kickbacks, Honest Services, and Health Care Fraud after Skilling

Joan H. Krause

Joan H. Krause (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Kickbacks, Honest Services, and Health Care Fraud after Skilling (Annals of Health Law, Vol. 21, No. 1, 2012) on SSRN.  Here is the abstract: 

This essay considers how the 2010 Supreme Court decision in Skilling v. United States, which limited the situations in which mail and wire fraud cases may be premised on violations of the “intangible right to honest services,” has the potential to alter the future of health care fraud litigation. While Skilling is widely perceived to have closed the door to several types of common mail and wire fraud prosecutions, this may not turn out to be the case in health care. In health care, the renewed focus on kickbacks as evidence of an honest services breach instead may dovetail nicely with both the Obama Administration’s emphasis on criminal health care fraud enforcement and the jurisprudence of the Medicare & Medicaid Anti-Kickback Statute. This kind of leverage may prove very difficult for prosecutors to resist, and most certainly will require changes in the way the health law bar approaches common Anti-Kickback concerns.

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