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11.27.2018   |   Articles / Publications

The Causation Trend in Anti-Kickback False Claim Cases: Courts’ Rejection of Relators’ Taint Theory Should “Cause” Them Concern at the Summary Judgment Stage of Qui Tam Litigation

Reprinted with permission from the American Bar Association. Originally published in the Health Lawyer, Volume 31, Number 1, October 2018.

I. Introduction
The False Claims Act (“FCA”)1 permits a person, known as a “qui tam relator” (or more commonly, a “whistleblower”), to bring a lawsuit on behalf of the federal government when that person has information that a healthcare provider submitted false claims to the government. To sustain an FCA claim, a relator must prove that “(1) there was a false statement or fraudulent course of conduct; (2) made or carried out with the requisite scienter; (3) that was material; and (4) that caused the government to pay out money or to forfeit moneys due (i.e., that involved a claim).”2

FCA cases often involve alleged violations of the federal Anti-Kickback Statute (“AKS”). Congress added specific language into the AKS in 2010, through the passage of the Patient Protection and Affordable Care Act (“PPACA”), to expressly provide that “a claim that includes items and services resulting from a violation of [the AKS] constitutes a false or fraudulent claim for purposes of [the
FCA].”3

Partially because the phrase “resulting from” was not defined by the 2010 amendment, creative relators in FCA lawsuits based on alleged AKS violations have in recent years relied on a conflated “taint” theory of causation to advance their case. In essence, the theory goes like this: the provider participated in an unlawful kickback scheme; during the scheme, the provider submitted reimbursement claims to the government (as proven by aggregate Medicare or Medicaid claims data); at the same time, the provider certified that it was complying with all federal healthcare laws; and all claims the provider submitted during the scheme were “tainted” and thus false under the FCA.

Courts that have squarely addressed this “taint” theory since the passage of the 2010 amendment have consistently rejected it. In fact, the growing trend of courts is to require relators to produce evidence at the summary judgment stage of the lawsuit establishing an actual causal link between the alleged kickback scheme and the submission of false claims to the government. Merely asserting that all claims were “tainted” by kickbacks will not suffice.

Download the full article, “The Causation Trend in Anti-Kickback False Claim Cases: Courts’ Rejection of Relators’ Taint Theory Should “Cause” Them Concern at the Summary Judgment Stage of Qui Tam Litigation” written by J. Matthew Kroplin and Adam W. Overstreet.

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