Physicians who pay a marketing company, call center, or lead-generation vendor a percentage of revenue for every patient referred are standing in one of the highest-risk zones in current federal enforcement. In September 2025, the Department of Justice settled with a former laboratory CEO, two physicians, and seven marketers for $6,068,462 after marketers were paid commissions, disguised as management service organization distributions, to induce laboratory testing referrals. The Anti-Kickback Statute does not require proof that the referred testing was medically unnecessary. A marketing fee that scales with referral volume can create exposure on its own.
What the Anti-Kickback Statute Reaches
The Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b), prohibits knowingly and willfully offering, paying, soliciting, or receiving remuneration to induce referrals of items or services reimbursable by a federal health care program. Remuneration reaches a per-patient fee, a commission on booked appointments, or a percentage of collections paid to a marketer. The government must prove intent: that at least one purpose of the payment was to induce referrals. That intent element separates the AKS from the Stark Law, which imposes strict liability on a physician self-referral regardless of intent. A practice defending a patient-recruiting arrangement is defending why the money moved, not only whether it moved.
When Percentage-Based Marketing Crosses the Line
On April 14, 2025, the Seventh Circuit reversed an Anti-Kickback Statute conviction in United States v. Sorensen, holding that payments to marketing firms based on the number of leads generated do not, by themselves, violate the AKS when the marketer has no influence over which patients get which service or which physician performs it. The court's reasoning turned on control over the referral decision, not on the percentage-based fee structure alone. Fair market value compensation for bona fide marketing work stays defensible. A fee structured to reward the marketer for steering specific patients to a specific physician, or for hitting a referral volume target, does not. The ruling binds only the Seventh and Fifth Circuits, and it does not protect a marketer who can sway a patient's or physician's choice.
The Enforcement Pattern Behind the September 2025 Settlement
The $6,068,462 settlement resolved allegations against the former CEO of a national laboratory, two physicians, and seven marketers who worked the laboratory's referral pipeline. The complaint alleged the marketers were paid kickbacks framed as management service organization distributions to induce doctors' laboratory testing referrals, with processing fees and copayment waivers layered on top. None of the government's theory depended on whether any lab test was medically unnecessary. The kickback arrangement itself was the false claim under 42 U.S.C. § 1320a-7b(g), which folds an AKS violation into False Claims Act liability for every claim that followed it. A settled matter like this one can also trigger OIG exclusion for the individuals involved, separate from any monetary penalty.
A marketing fee that scales with the number of patients referred is one of the clearest indicators regulators use to open an investigation.
How These Arrangements Surface in an Investigation
The Department of Health and Human Services Office of Inspector General and DOJ typically identify percentage-based marketing arrangements through referral-pattern data analytics before a physician ever hears from investigators. Once a pattern draws attention, the government's first move is usually a document request aimed at the marketing vendor's books, followed by a civil investigative demand or a grand jury subpoena reaching the physician's own referral and compensation records. By the time a subpoena arrives, the government has often already mapped the commission structure. Our guide to the first 48 hours after a target letter covers that arrival point in detail, and a marketing kickback theory can run alongside a False Claims Act case on parallel civil and criminal tracks at the same time.
Why Early Legal Counsel Is Critical
It is critical that physicians promptly retain experienced healthcare defense counsel upon receiving a subpoena, audit notice, investigative request, or other government inquiry touching a marketing or patient-recruiting arrangement. Early legal intervention can protect the physician's rights, ensure appropriate responses to government requests, avoid inadvertent admissions about how a marketing fee was calculated, preserve relevant defenses, and allow counsel to communicate with investigators on the physician's behalf. Delaying legal representation can significantly affect the outcome of a matter and expose the physician to unnecessary risk.
How Health Law Alliance Can Help
Health Law Alliance defends physicians and practice owners against Anti-Kickback Statute and False Claims Act allegations arising from marketing, lead-generation, and patient-recruiting arrangements, from the first subpoena through negotiated resolution or trial. Our bench includes a former federal prosecutor and attorneys who have represented providers through OIG and DOJ inquiries into commission structures and marketing vendor relationships. If your practice's marketing arrangement is under government scrutiny, contact us today for a free consultation.
