Diametrically opposite rulings vex bar in closely watched health care law dispute
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The U.S. District Court in Boston has become ground zero for a simmering dispute about one of the U.S. Department of Justice’s most potent anti-fraud tools, with two highly respected judges issuing contrary opinions about the scope of the law.
Health care defendants, and the local white-collar bar defending them, are closely watching the dispute play out, with millions of dollars in penalties and fines at stake.
The federal Anti-Kickback Statute has emerged in recent years as a potent enforcement vehicle for the DOJ. Under the AKS, in general, it is illegal to offer or accept anything of value in exchange for referring or recommending an item or service that is reimbursed by the federal government.
Historically, the DOJ enforced the AKS through criminal prosecutions or Civil Monetary Penalties Law resolutions. In 2010, through the Affordable Care Act, Congress amended the AKS such that a violation also gave rise to liability under the federal False Claims Act.
With federal programs (Medicare, Medicaid, TriCare, VA) paying for more than 35 percent of health care services in the country, enforcing the AKS and the FCA has become a major priority for the federal government.
Deploying an army of prosecutors, agents, auditors and investigators to enforce the AKS through the FCA, the DOJ has used this provision...
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