A Rumination on Remuneration

[...]the statute applied only to a "kickback," "bribe," or "rebate of any fee or charge" that was in exchange for a prohibited referral.3 In 1977, Congress amended the AKS statute to cover (in the pertinent part) the offer or payment of "any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind to any person to induce such person" to refer FHCP patients or business to the payer.4 As noted above, the AKS does not define the term "remuneration," and the U.S. Department of Health and Human Services, Office of Inspector General (HHS-OIG), the lead enforcement agency with respect to the AKS, has never promulgated regulations defining the term "remuneration." Both physicians referred patients for surgery to the local hospital, which in-turn referred patients in need of ophthalmology services to the practice.10 The relationship between the two ophthalmologists turned sour when Dr. Martin discovered that (i) Dr. Hathaway was negotiating a merger with a larger practice, and (ii) the larger practice was not expected to keep Dr. Martin in its employ.11 Following her discovery, Dr. Martin turned to the local hospital (for whom her husband was the Director of Finance) and received a tentative offer of employment, subject to the hospital board's approval.12 At the time, the board was under the impression that because of the merger, Dr. Hathaway planned to move his surgeries elsewhere.13 Dr. Hathaway subsequently met with the hospital's CEO, however, and stated that he planned to continue business as usual; in fact, he stated, the merger might even result in an increase of surgery patients for the hospital.14 After some additional cajoling by Dr. Hathaway, the board met and voted not to hire Dr. Martin. The Court summarized the alleged kickback scheme as follows: the local hospital's "rejection of Dr. Martin's employment in return for Dr. Hathaway's commitment to continue sending local surgery referrals violated the [AKS]. Medicare and State Health Care Programs: Fraud and Abuse; OIG Anti-Kickback Provisions, 56 Fed.