Calling Off the Bounty Hunters: Discrediting the Use of Alleged Anti-Kickback Violations to Support Civil False Claims Actions
As skyrocketing health care costs threaten the survival of federally funded health care programs, government prosecutors and private parties are frequently turning to the Civil False Claims Act' as their weapon of choice in waging the "war" on health care fraud and abuse. The False Claims Act is a powerful federal statute that creates liability for the submission of false claims to the federal government. In the health care industry, a typical false claims plaintiff asserts that a health care provider submitted a Medicare or Medicaid claim to the federal government which was "false" because the provider mischarged or overcharged the government. In these cases, the provider seeks to defraud the government by submitting false assertions or false data.
Recent revisions of the False Claims Act, however, have encouraged prosecutors and private parties to apply the Act to the health care sector in new and creative ways. One of these innovations is the "tainted claim." The tainted claim theory of False Claims Act liability asserts that a violation of a separate federal statute "taints," or makes false, claims subsequently filed with the government. In the health care arena, well-publicized tainted claims have involved allegations that a violation of the Medicare/Medicaid anti-kickback statute tainted a subsequently filed claim for Medicare or Medicaid reimbursement. This Note refers to these claims as "anti-kickback- based tainted claims." Under this new theory of liability, the initial anti-kickback violation renders a subsequent Medicare claim "false" no matter how medically necessary and competently administered the services were, or how bona fide the claim for payment actually is. Thus, the alleged violation of the anti-kickback statute makes a claim "false" not because the claim is incorrect, falsified, or misleading, but because the provider violated a separate federal law.
The first purpose of this Note is to highlight the existence of anti-kickback-based tainted claims and outline their development. Accordingly, Part II of this Note gives a brief summary of the False Claims Act and its qui tam provisions which allow private citizens to bring false claims actions on behalf of the government. Part III provides a similar overview of the Medicare/Medicaid anti-kickback