We recently authored an article for The Federal Lawyer exploring the causation standard under the Anti-Kickback Statute (AKS) and the increasing difference between the circuit courts’ interpretation of this standard. “At its core, the question is whether evidence of kickbacks sullies the entirety of the claims related to that transgressor, or whether the government must demonstrate more,” we explained.
The AKS was originally enacted in 1972 and amended in 2010 “to clarify that a claim ‘resulting from’ an AKS violation constitutes a false or fraudulent claim under the False Claims Act.” The “resulting from” language has been interpreted differently since. We pointed out that “Defendants typically argue that the government must demonstrate but-for causation to prove that a false claim resulted from an alleged kickback. Whereas (unsurprisingly) the government continues to argue that evidence of an illegal kickback is enough to render all the claims false. The government contends that, before 2010, some courts had concluded that the non-disclosure of an AKS violation was enough to make a claim ‘false or fraudulent’ regardless of whether a causal relationship existed.”
We added, “The issue is not whether an illegal kickback caused a false claim where there is a clear link between the underlying conduct and the referral and claim submitted, but, instead, the question is whether the mere presence of an illegal kickback essentially taints every claim submitted such that all the claims are rendered false without demonstrating some causal link between the misconduct . . . . [T]he burden of proof lies with government in FCA cases and, thus, the government must demonstrate that a false claim was submitted because of an illegal kickback if the payment of kickbacks is sufficient to render the claim fraudulent.”
We concluded by saying, “when weighing the risk of litigating this issue, one should not view the evidence in a vacuum, but rather, one should consider whether all of the activities viewed collectively might constitute such egregious conduct as to render the kickback inextricably intertwined with the underlying claim submitted.”
The full article, “Causation Conundrums: AKS Interpretations Post-2010 Amendment,” was published in the Fall 2024 edition of The Federal Lawyer and is available online (subscription required).