United States, ex rel. Shannon Martin, M.D., et al. v. Darren Hathaway, M.D., et al.

The Anti-Kickback Statute (AKS) prohibits solicitation or receipt of “any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind” in return for referring an individual to a person for furnishing items or services under a Federal health care program. 42 U.S.C. §1320a-7b(b)(1)(A). The False Claims Act (FCA), 31 U.S.C. §3729, et seq., establishes criminal and civil penalties for knowingly presenting, or causing to be presented, a false or fraudulent claim to the government for payment or approval. FCA liability can attach when a defendant submits a claim for payment and fails to disclose noncompliance with a statutory requirement, such as the AKS. In 2010, Congress enacted 42 U.S.C. §1320a-7b(g), which provides “a claim that includes items or services resulting from a violation [of the AKS] constitutes a false or fraudulent claim for purposes of [the FCA].” The questions presented are:

1. Does the term “remuneration” under the AntiKickback Statute encompass solicitation or receipt of any kind of reward or compensation, or is it limited to payments and other transfers of value?

2. Does 42 U.S.C. §1320a-7b(g) heighten the standard for establishing liability under the False Claims Act for actions predicated on an Anti-Kickback Statute violation?