The Eighth Circuit released an opinion Tuesday in U.S. ex rel. Cairns v. D.S. Medical LLC that creates a new circuit split on the interpretation of the causation standard for establishing that a claim “resulting from” a violation of the Anti-Kickback Statute (AKS) makes a claim “false or fraudulent” under the False Claims Act (FCA). The Eighth Circuit held that a plaintiff (government or relator) relying solely on the “resulting from” language in the AKS must show “but for” causation -- that but for the kickbacks, the claims at issue would not have included the item or service that was the subject of the kickback. This contrasts to an earlier Third Circuit decision on the same question that rejected the but-for causation standard and instead required a showing that there was some causal link between the kickback and the submission of claims for payment to the government. We will continue to monitor these divergent interpretations of the element of causation for AKS-based FCA cases to see how courts approach the issue in subsequent cases.
The statutory provision addressed in Cairns was enacted in 2010 to simplify what had become a variety of approaches applied by courts to address the intersection of the AKS and the FCA. Through the Affordable Care Act, Congress amended the AKS to specifically provide: “a claim that includes items or services resulting from a violation of [the AKS] constitutes a false or fraudulent claim for purposes of” the FCA.1 Thus, if a...
CONCORD, N.H.- The head of the Division of Children, Youth and Families has addressed claims of abuse against the Sununu Youth Services Center. Appearing Monday before a Senate subcommittee Direct...