In 2010, Congress amended the anti-kickback statute (AKS) to confirm that claims “resulting from” illegal kickbacks are false and thus actionable under the federal False Claims Act (FCA), 42 U.S.C. § 1320a-7b(g). Congress did not specify, though, what it means for a claim to result from an illegal kickback. The question does not matter for a criminal AKS case, because the offer or receipt of the payment completes the crime. No referral or claim need result. But a civil FCA case requires more: the submission of a false claim to a federal health care program. What then links the submitted claim to the illegal kickback for purposes of showing falsity?

Courts have resisted arguments that a claim only “results from” a kickback if the kickback caused the referral that led to the claim. The FCA and the AKS seek to safeguard the independence of medical decision-making from the taint of kickbacks. The fear is that a strict causation requirement can lead to under-enforcement as courts would struggle to unravel why doctors or pharmacists recommended a given drug or service to patients. The U.S. Court of Appeals for the Third Circuit recently expressed sympathy for the DOJ’s view that no causal relationship should be required because, if it were, even the most prototypical example of harmful kickbacks would be hard to prove, see Greenfield v. Medco Health Solutions, 880 F.3d 89 (3d Cir. 2018). The DOJ argued that no causal relationship should be required when a service provider bribes a doctor for patient referrals, the bribed doctor refers a patient, and the provider then bills Medicare for its care of the referred patient; that claim, it argued, violates the FCA regardless of whether the DOJ can prove the kickback actually influenced the referral decision.

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