![handle is hein.journals/healaw31 and id is 1 raw text is:
H IEALTH
H LAWYER
The Causation Trend in Anti-
Kickback False Claim Cases:
Courts' Rejection of Relators'
Taint Theory Should 'Cause'
Them Concern at The
Summary Judgment Stage
of Qui Tam Litigation............. 1
Chair's Column...................... 2
Changes in the Privacy
Landscape: California and
Colorado Strengthen Data
Privacy Laws ......................... 8
Section News...................... 16
Mediating Healthcare Disputes
More, Earlier ... and Differently:
Mediating Directly in the
Clinical Setting .................... 18
How Federal Disability and
Age Discrimination Laws
Apply - or Not - to Physician
Independent Contractors
Who May Be Impaired...........30
Section Calendar.......Back Cover
THE CAUSATION TREND IN ANTI-
KICKBACK FALSE CLAIM CASES:
Courts' Rejection of Relators' Taint Theory Should
'Cause' Them Concern at The Summary Judgment
Stage of Qui Tam Litigation
Adam W. Overstreet, Esq.
Huntington Ingalls Industries,
Ingalls Shipbuilding Division
Pascagoula, MS
J. Matthew Kroplin, Esq.
Burr & Forman
Nashville, TN
Introduction
The False Claims Act (FCA)'
permits a person, known as a qui tam
relator (or more commonly, a whis-
tleblower), to bring a lawsuit on
behalf of the federal government when
that person has information that a
healthcare provider submitted false
claims to the government. To sustain
an FCA claim, a relator must prove
that (1) there was a false statement or
fraudulent course of conduct; (2) made
or carried out with the requisite scien-
ter; (3) that was material; and (4) that
caused the government to pay out
money or to forfeit moneys due (i.e.,
that involved a claim).2
FCA cases often involve alleged
violations of the federal Anti-Kickback
Statute (AKS). Congress added spe-
cific language into the AKS in 2010,
through the passage of the Patient
Protection and Affordable Care Act
(PPACA), to expressly provide that
a claim that includes items and ser-
vices resulting from a violation of [the
AKS] constitutes a false or fraudulent
claim for purposes of [the FCA].3
Partially because the phrase
resulting from was not defined by the
2010 amendment, creative relators in
FCA lawsuits based on alleged AKS
violations have in recent years relied
on a conflated taint theory of causa-
tion to advance their case. In essence,
the theory goes like this: the provider
participated in an unlawful kickback
scheme; during the scheme, the pro-
vider submitted reimbursement claims
to the government (as proven by
aggregate Medicare or Medicaid claims
data); at the same time, the provider
certified that it was complying with all
federal healthcare laws; and all claims
the provider submitted during the
scheme were tainted and thus false
under the FCA.
Courts that have squarely addressed
this taint theory since the passage of
the 2010 amendment have consistently
rejected it. In fact, the growing trend
continued on page 3
Volume 31, Number 1,
October 2018](ViewImageLocal?handle=hein.journals/healaw31&div=1&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most