View Full Version : The Criminal Intent of ObamaCare

10-09-2010, 10:33 PM

A couple of weeks ago the President and his allies in the press made much of ObamaCare's six-month anniversary, using the occasion to tout a selective list of minor provisions that went into effect on September 23. We heard a lot about dastardly insurance industry practices, such as the fiendish refusal to insure people against maladies they have already contracted, from which we are now shielded by the Patient Protection and Affordable Care Act (PPACA). There was no mention, however, of a more important provision that has also gone into effect. This obscure provision of PPACA, buried deep in Section 6402, has received little attention from health policy wonks and even less from the "news" media. Nonetheless, it has very serious implications for the legal rights of health care providers, the American justice system and ability of many patients to access medical care.

A fundamental principle of our justice system holds that a person cannot be convicted of a felony unless it has been proven that he acted with "criminal intent." It must be shown, in other words, that he intentionally engaged in conduct he knew to be illegal. This is a venerable legal principle whose pedigree reaches back to the beginnings of Western Civilization, and it was an important element of the English common law upon which the American justice system is based. The requirement to prove criminal intent has, however, been something of a nuisance to Beltway bureaucrats seeking to bend private industry to their will. And it has been particularly inconvenient for federal prosecutors trying to throw doctors and hospital executives in jail for violating hopelessly obscure and Byzantine regulatory statutes. But that pebble has been removed from the federal shoe by ObamaCare.

Specifically, Section 6402(f)(2) revises existing law so that the government can ignore the criminal intent principle in violations of the Anti-Kickback Statute (AKB). AKB prohibits the payment or receipt of remuneration in exchange for referrals or the purchase of goods and services paid for by a federal health care program. It is a criminal statute, the violation of which is punishable by imprisonment for up to five years. Prior to last March, the government could not obtain a conviction under AKB unless it proved that a defendant knew about the law and intentionally ignored it. The authors of PPACA used the health care bill to revise the statute such that "a person need not have actual knowledge of [AKB] or specific intent to commit a violation." The "person" who will most likely be prosecuted regardless of "actual knowledge" or "intent" is, of course, your doctor or someone with whom he does business.

"Remuneration" means obvious things like kickbacks and bribes, of course, but it can also mean "payment in kind" made "directly or indirectly, overtly or covertly." Interpreted broadly, such language can cover virtually every transaction that occurs in the health care industry.

Predictably, the Beltway bureaucrats have interpreted the "R" word very broadly indeed: "[T]he government has invoked the broad prohibition against 'remuneration' to target common business arrangements, such as product discounts, marketing agreements and home health-management deals."