Kickbacks are often the basis for an action under the False
federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b), ("AKS")
arose out of congressional concern that payments or things of value
provided to those who can influence healthcare decisions
would result in goods and services being provided that are
medically unnecessary, of poor quality, or harmful to
patients. To protect the Medicare and Medicaid programs from
these harms, Congress enacted a prohibition against the payment of
kickbacks in any form, See United States v. Greber,
760 F.2d 68, 70-71 (3d. Cir. 1985).
The AKS prohibits any person or entity from offering,
making, soliciting, or accepting remuneration, in cash or in kind,
directly or indirectly, to induce or reward any person for
purchasing, ordering, or recommending or arranging for the
purchasing or ordering of federally-funded medical goods or
services. Violation of the statute also can subject the perpetrator
to exclusion from participation in federal health care programs
and, effective August 6, 1997, civil monetary penalties of $50,000
per violation and three times the amount of remuneration paid. 42
U.S.C. §1320a-7(b)(7) and 42 U.S.C. §1320a-7a(a)(7).
Courts have held that a person or entity who violates the AKS
and submits a claim or causes another to do so has violated the False Claims
Act, 31 U.S.C. 3729 et. seq. regardless of what form the claim
or statement takes. See United States ex rel. Schmidt v. Zimmer,
Inc., 386 F.3d 235, 243 (3d Cir. 2004); United States ex rel.
Conner v. Salina Regional Health Ctr., 543 F.3d 1211, 1223 n.8
(10th Cir. 2008); United States ex rel. McNutt v. Haleyville
Medical Supplies, 423 F.3d 1256, 1259-1260 (11th Cir. 2005); and
United States v. Rogan, 459 F. Supp. 2d 692, 717 (N.D. Ill. 2006),
aff'd, 517 F.3d 449 (7th Cir. 2008). Moreover, the AKS
was amended to expressly state what these courts had already
held, namely, that a violation of the AKS constitutes a "false or
fraudulent" claim under the FCA. 42 U.S.C. §
Many of these courts have reasoned that the claims are false,
and thus violate the FCA, because there is a false certification -
either express or implied - as to compliance with the AKS each time
a claim is submitted.
Click here to read more about false claims and qui tam
To support a false claim, a kickback must be proven by the
preponderance of the evidence.
Defendants often argue that for there to be
false claim liability, the claimed kickback, must be proved beyond
a reasonable doubt, because the kickback is a criminal
offense. In an amicus brief filed in an on-going false claims
case, the United States recently argued that the kickback need only
by shown by the preponderance of the evidence. It noted that
under the FCA, liability, no matter the underlying theory, only has
to be proved by a preponderance of the evidence. 31 U.S.C. §
3731(d) ("In any action brought under [the FCA], the United States
shall be required to prove all essential elements of the cause of
action, including damages, by a preponderance of the evidence."),
US ex. rel. Pasqua v Kan-Di-Ki, LLC,
2:10-cv-00965 C.D. CA. (March 8, 2013).
That the government stated its position in
a case in which it had not intervened is significant, particularly
as it supported a position on burden of proof that would be helpful
to whistleblowers in other cases where the false claims asserted
are based upon kickbacks.
Contact Us To Learn More
If you have discovered evidence of government fraud,
contact an experienced False Claims Act attorney before blowing the
whistle. You may be entitled to a substantial reward and the legal
protections afforded to whistleblowers under state and federal
laws. The attorneys of Berger & Montague are nationally
recognized experts in Whistleblower/Qui Tam actions with over a
decade of experience pursuing these complex fraud cases. For more
information or to schedule your confidential consultation, use the
form or call us at 1-800-424-6690.
For further reading:
GlaxoSmithKline False Claims Act Suit to Settle for $3
What is Qui Tam
False Claims Cases to take Action On
Whistleblowers, Qui Tam & False Claims Act Legal Blog by Berger
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