The United States Court of Appeals for the Sixth Circuit recently affirmed an order dismissing a qui tam False Claims Act (“FCA”) suit based on alleged violations of the Anti-Kickback Statute (“AKS”). The appeals court agreed with the district court’s conclusion that the complaint did not adequately allege “remuneration” or that claims “result[ed] from” AKS violations. The case is United States ex rel. Martin v. Hathaway, 22-1463 (6th Cir. Mar. 28, 2023).
The AKS criminalizes, among other things, knowingly and willfully soliciting or receiving (or offering or paying) remuneration in exchange for referrals of items or services reimbursed through federal healthcare programs. 42 U.S.C. § 1320a-7b(b)(1)(A), (2)(A). The FCA imposes civil damages and penalties for, among other things, “present[ing], or caus[ing] to be presented, a false or fraudulent claim [to the government] for payment or approval.” 31 U.S.C. § 3729(a)(1)(A). “[A] claim that includes items or services resulting from a violation of [the AKS] constitutes a false or fraudulent claim [under the FCA].” 42 U.S.C. § 1320a-7b(g).
The FCA has a bounty system that allows private parties to pursue alleged violations of the FCA in exchange for a share of any recovery. 31 U.S.C. § 3730. The lure of these bounties has led relators (and sometimes the government) to push the boundaries of what constitutes “remuneration” and what it means for a claim to “result[] from” an AKS violation.
Martin presents a recent example. There,...
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