Court Certifies Interlocutory Appeal to First Circuit on Causation Standard Connecting AKS Violations and the FCA

Last week a court in the District of Massachusetts took the rare step of allowing an FCA defendant to pursue an interlocutory appeal arising from the summary judgment stage of an FCA case in which DOJ is seeking $10 billion in damages and penalties.  The question on appeal asks the First Circuit to take a side in an expanding circuit split on the requisite causation requirement for AKS violations to trigger FCA liability.

As amended by the Patient Protection and Affordable Care Act, the AKS provides that “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.  Differing interpretations of the “resulting from” language have created a clear circuit split.  As discussed here and here, the Sixth and Eighth Circuits have determined that “resulting from” requires that the AKS violation be the but for cause of the submission of the claim.  However, the Third Circuit, as discussed here, has held that “resulting from” requires merely a “link” between the kickback and the claim.

Briefly applying the statutory standard for interlocutory appeals, the district court granted the motion because (1) the “resulting from” language is a “controlling question of law as to which there is substantial ground for difference of opinion” and (2) an immediate appeal could “materially advance the ultimate termination” of the litigation.

We will continue to monitor the case.

The court’s order is available here.

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