The emerging circuit split on the causation standard used to identify claims “resulting from” violations of the Anti-Kickback Statute (AKS) for purposes of the False Claims Act (FCA) raises proof problems for relators and the government in litigation. Last summer, the Eighth Circuit Court of Appeals held that a plaintiff relying solely on the “resulting from” language in the AKS to establish FCA liability 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 stands in contrast to a Third Circuit opinion on the same issue that rejected the but-for causation standard, holding instead that a plaintiff need only show causal link between the kickback and the submission of claims for payment to the government. The Sixth Circuit is scheduled to take up the issue this spring when it hears argument in a declined qui tam that drew the attention of the government and the American Hospital Association, both appearing as amicus.
Background
The statutory provision at the center of this circuit split was enacted in 2010, purportedly to simplify what had become the disparate approaches applied by courts to address the intersection of the AKS and the FCA.1 Through the Affordable Care Act, Congress amended the AKS to specifically provide that: “a claim that includes items or services resulting from a violation of the AKS constitutes a false or fraudulent claim for purposes of”...
Foley partner Lisa Noller, Chair of the Firm’s Litigation Department, will be speaking at the American Bar Association’s Qui Tam & Civil False Claims and Healthcare Fraud Institute in Washingt...