In United States v. Regeneron Pharmaceuticals Inc., the US Court of Appeals for the First Circuit held that when the government seeks to establish False Claims Act liability under the 2010 amendment to the Anti-Kickback Statute, the government must show kickbacks were the “but-for” cause of claims submitted to federal healthcare programs.
The First Circuit joined the Eighth and Sixth Circuits, turning the circuit split into a 3-to-1 majority (with the Third Circuit in the minority) over the 2010 amendment’s causation standard in False Claims Act (FCA) cases. Although requiring proof of but-for causation in FCA cases premised on Anti-Kickback Statute (AKS) violations and the 2010 amendment is undoubtedly a high standard for the government or private relators to meet, the opinion made clear that the court’s interpretation did not foreclose other avenues of pursuing FCA liability for illicit kickbacks.[1]
The FCA and AKS are the two authorities often used by the US Department of Justice to combat fraud and abuse of federal healthcare programs like Medicare and Medicaid. The AKS is a criminal statute that prohibits the knowing and willful offer, payment, solicitation, or receipt of anything of value to induce or reward the referral, recommendation, or arrangement of federal healthcare program business.[2] The FCA prohibits the knowing submission, or causing the submission, of a false or fraudulent claim for payment to the government.[3]
While the FCA and...
The Catholic Archdiocese of Chicago filed a lawsuit last month alleging that a group of conspirators engaged in a racketeering scheme to defraud the archdiocese by falsely claiming priest sexual a...