In a significant precedential development, two federal circuit courts have imposed strict causation requirements in health care kickback cases under the Federal False Claims Act (FCA), placing under duress one of the go-to bases for such suits. At the heart of the development is a question about the meaning of a 2010 legislative change, when Congress said that the FCA applies to claims for items or services “resulting from” illegal remuneration paid for health care referrals in violation of the Anti-Kickback Statute (AKS).

In the first decade after this change, courts resisted heightened causation requirements and rejected a need to show but-for causation—i.e., that a claim only “results from” a kickback if the claim would never have happened had the kickback not been paid. Instead, courts allowed suits to proceed on weaker grounds, such as a failure to disclose an anti-kickback violation regardless of whether a causal relationship existed. And in 2018, the U.S. Court of Appeals for the Third Circuit rejected the notion that the statutory language “resulting from” requires a “direct causal link” between the alleged kickbacks and the resulting claim. Citing to legislative history, the Third Circuit held that “resulting from” requires only “some connection” between the tainted referral and the claim, which could be established if “a particular patient is exposed to an illegal recommendation or referral and a provider submits a claim for reimbursement pertaining to that patient.” Greenfield v. Medco Health Solutions, 880 F.3d 89 (3d Cir. 2018).