On March 28, 2023, the U.S. Court of Appeals for the Sixth Circuit issued a decision in U.S. ex rel. Martin v. Hathaway limiting the scope of liability under the Anti-Kickback Statute (AKS) and the False Claims Act (FCA) in two ways. First, the Sixth Circuit narrowly interpreted “remuneration” under the AKS to mean “payments or other transfers of value,” as opposed to “any act that may be valuable” to another. Second, the Sixth Circuit adopted a “but-for” causation standard for FCA suits premised on alleged violations of the AKS, thereby requiring that a plaintiff show that a claim for government reimbursement “would not have occurred” absent the alleged kickback.

Takeaways

• Martin is the first federal appellate decision to hold that “remuneration” in the AKS means “just payments and other transfers of value”—and not “any act that may be valuable to another.”
• The Sixth Circuit invoked the rule of lenity in interpreting “remuneration,” reasoning that because the AKS imposes both civil and criminal liability, the rule of lenity applies and “favors the narrower definition” when ambiguity exists. This signals an opportunity to further narrow the scope of the AKS where there are other ambiguities.
• The Sixth Circuit joins the Eighth Circuit in adopting a but-for causation standard for establishing violations of the AKS under the FCA and deepens a circuit split with the Third Circuit, which recently adopted a more lenient standard requiring “some connection” between a kickback...

Read Full Story: https://news.google.com/rss/articles/CBMiUWh0dHBzOi8vd3d3Lmpkc3VwcmEuY29tL2xl...