On December 29, 2011, the Office of Inspector General of the Department of Health and Human Services ("OIG") published its annual notice ("Solicitation") soliciting recommendations and proposals for developing new and modifying existing safe harbors under the Federal Anti-Kickback Statute ("Anti-Kickback Statute") and developing new OIG Special Fraud Alerts. Proposals must be submitted by February 27, 2012, to the OIG.

The Anti-Kickback Statute's Safe Harbor Provisions

The Anti-Kickback Statute provides that whoever knowingly and willfully offers, pays, solicits, or receives remuneration to induce or reward business reimbursable under the federal health care programs will be guilty of a felony punishable by fines of up to $25,000 and imprisonment for up to five years. Additional penalties may include civil money penalties and exclusion from the federal health care programs. In order to limit the number of legitimate and innocuous business arrangements that may qualify as kickbacks pursuant to the Anti-Kickback Statute, the OIG developed safe harbor provisions. Health care providers and others may structure arrangements with referral sources that would otherwise violate the Anti-Kickback Statute to comply with either a statutory exception or a safe harbor provision in order to avoid liability under the Anti-Kickback Statute. To ensure that the list of safe harbor provisions remains current with evolving health care industry practices, Section 205 of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") requires the OIG to develop and publish an annual notice in the Federal Register soliciting proposals for developing new and modifying existing safe harbors to the Anti-Kickback Statute.