In this post, we summarize noteworthy False Claims Act (FCA) decisions so far from 2023.
Each of the three circuit court opinions discussed here ruled in favor of the defendants on different aspects of the FCA: the Sixth Circuit addressed falsity predicated on an Anti-Kickback Statute violation, the Second Circuit analyzed the public disclosure bar, and the Ninth Circuit addressed presentment and materiality.
In March, the Sixth Circuit issued an important ruling interpreting both the "remuneration" and "causation" elements of the Anti-Kickback Statute (AKS), taking a narrow approach that is good news for healthcare providers and other defendants.
This lawsuit was filed by an ophthalmologist (the relator) who alleged that a hospital decided not to hire her in favor of another independent ophthalmologist who threatened to move his referrals away from the hospital if it hired the relator and to increase his referrals if the hospital declined to hire the relator. The relator alleged that this decision violated the AKS and in turn, led to the hospital submitting false claims for payment in violation of the FCA.
First, the Sixth Circuit rejected the relator's argument that remuneration can broadly include "any act that may be valuable to another." Instead, the Sixth Circuit held that remuneration only includes "payments and other transfers of value." Under this narrower interpretation, the court held that the...
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