Foley & Lardner LLP Partner Lisa Noller is quoted in the Healthcare Risk Management article “Court Issues Ruling on False Claims Act,” describing the consequences of a recent ruling by the U.S. Court of Appeals for the Eight Circuit that makes proving fraud or falsity under the Anti-Kickback Statute (AKS) more difficult.
“The ruling is a big win for the health care industry,” Noller said.
“The Anti-Kickback Statute criminalizes payments that have, as any one purpose, the inducement or reward for a referral. When that statute was amended in 2010, a section was added that made it a false claim if there is any claim submitted resulting from a violation of the AKS. That really codified case law, but since then there have been very few circuits that have had an opportunity to evaluate it,” she explained.
The Eighth Circuit said the “but for” clause in the statute was unambiguous, to which Noller noted that a false claim “must have resulted from the kickback, not just that it was undisclosed, or it happened to be orbiting in the same universe. There has to literally be ‘but for’ causation.”
“As far as we can tell, this is the first circuit that has gone that far. Frankly, it should, because it is just what the statute says,” she continued.
Noller added that while the ruling only applies to the Eighth Circuit, it could signal how other courts will rule going forward.
