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31 Health Law. 1 (2018-2019)

handle is hein.journals/healaw31 and id is 1 raw text is: 























The Causation Trend in Anti-
Kickbhack False Claimn Caises:
Courts' Rejection of Relators
Taint The ory Should 'Cause'
Them  Concern at The
Summary  Judgment Stage
of Qui T  Litigation  ..... 1

Chair's Colmn...  ........... 2

Changes in the Privacy
Landscape: California and
Colorado Strengthen Data
Privacy Laws ...........................8

Section News... ....................... 16

Mediating Heaithcare 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


T  HE CAUSAT I ON 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. Oversi reet, Esq.
Huntington Ingalts Industries,
  Ingalls Shipbuilding Division
Pascagoula, MS
J, Matthew Kroplin, Esq.
Burr & Fornan
Nashville, TN


Introduction

    The False Claims Act (FCA)'
permits a person, known as a qui tam
relator (r more connonly, 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
art 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 reouisite 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).

    FCA  cases often involve alleged
violations of rhe federal Anri-Kickback
Statute (AKS). Congress added spe-
cific 'anguage into he AKS in 2010,


Volume 31, Number 1,
October 2018


through the passage of the Patent
Protection and Affordable Care Act
(PPACA)   to expressly provide that
a claim that includes items and set-
vices resulti ng from a viola tion of [the
AKS]  constitutes a false or fraudulent
caim Cr purposes of [the FCA]

    Partially because the  phra se
resulting from was riot defined by the
2010 amendment.  creative relarors in
FCA  lawsuit's 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 clains
to the government   (as poven  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 d uring he
scneme werc 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
                    coninued on page .3


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