Let’s get something straight, up front. The sky is not falling. No new enforcement wave is coming. Health care executives need not start contacting personal defense counsel.
But in the wake of the March 19 verdict (Jury Finds Chicago Hospital Execs Guilty In Kickbacks Case) in the Sacred Heart antikickback case, it’s reasonable for general counsel to expect a question or two about personal liability from senior leadership team members. And that’s a great teaching moment for the general counsel. Indeed, Sacred Heart involved highly unique facts, and individual executive prosecutions under the federal Anti-Kickback Statute [42 U.S.C. 1320a-7b(b)] remain extremely rare. But the federal government has a wide variety of enforcement tools from which to pursue health care executives that it regularly considers using. So Sacred Heart provides an opportunity for general counsel to brief executives on the scope of the government’s power and discretion related to individual executives.