The Situation: Under 42 U.S.C. § 1320a-7b(g), a claim that "includes items or services resulting from a violation" of the Anti-Kickback Statute ("AKS") is a false claim for purposes of the False Claims Act ("FCA"). This provision is typically central to FCA suits that allege AKS violations—a theory of liability that health care providers know all too well.
The Result: In U.S. ex rel. Cairns v. D.S. Medical LLC, the Eighth Circuit held that § 1320a-7b(g) requires establishing but-for causation—namely, that a claim would not have included the items or services at issue absent the illegal kickbacks.
Looking Ahead: The Eighth Circuit's decision marks the first time a federal appellate court has construed § 1320a-7b(g) to require but-for causation and will prove helpful to defendants in AKS-based FCA suits. But other courts, including the Third Circuit, have understood § 1320a-7b(g) differently, to require only a "link" between the kickback and the claim. This issue is likely to be the subject of future litigation.
Although any knowingly false claims for government payment can violate the False Claims Act ("FCA"), a particularly common theory of FCA liability in the health care and life sciences industries is that claims are false because of an Anti-Kickback Statute ("AKS") violation. The AKS prohibits, in relevant part, providing "any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind" in order to...
Athena Construction Group Inc. must pay about $1 million for violating the False Claims Act by making misrepresentations about its eligibility to receive contracts set aside for HUBZone companies,...