Under both federal and state laws, every health care provider who provides goods or services to a government-funded health care program is prohibited from giving, accepting, soliciting or arranging items of value in any form (gifts, certain discounts, cross-referrals between parties), either directly or indirectly for the purpose of inducing or rewarding another party for referrals of services paid for by those government programs.  The anti-kickback laws are very broad and are intended to make unlawful all the different ways something of value may be given which might influence another person’s decision-making in how government-funded care or services is provided.  Kickbacks can include direct payments like cash  and bribes, but more subtle arrangements, such as honorariums, research grants, or lavish all-expenses paid vacations disguised as education programs may also be considered kickbacks.

With billions of dollars in pharmaceuticals sold to government health care programs every year, kickback schemes between pharmaceutical manufacturers who make the products, and the health care providers who prescribe them, are too common.  Some of the ways that pharmaceutical manufacturers reward or induce providers to prescribe their drugs or use their products include: providing drug samples, expensive meals, travel, tickets to sporting events, golf outings or other entertainment, and gifts for free; compensating providers for attending conferences and meetings; paying excessive fees to providers for serving as members on advisory boards; awarding generous research funding, educational grants, and bogus clinical trial work to potential prescribers.  These kickback arrangements, to name only a few, create incentives for prescribing providers to prescribe drugs or use the manufacturer’s products based on their own interest rather than the best interests of the patient. 

Combatting these illegal arrangements is a high priority in the government’s ongoing effort to curb health care fraud because these kickback arrangements are not made in the best interest of the patient and also increase the cost to the government of providing health care.  Indeed, in 2010, Congress amended the AKS to make clear that claims submitted to federally-funded healthcare programs in violation of the AKS automatically constitute false claims for purpose of the False Claims Act (“FCA”).  This means that pharmaceutical manufacturers who offer or provide anything of value to health care providers as incentives to prescribe or use their products which will be paid for by government health care programs in violation of the anti-kickback laws are automatically in violation of the False Claims Act as well.  Likewise, health care providers who receive money, property or any kind of financial benefit as reward for prescribing or using a certain manufacturer’s products that is paid for by a government health care program, including Medicare or Medicaid, who violate the anti-kickback laws will be subject to False Claims Act liability.

If you believe someone has knowingly committed pharmaceutical fraud by engaging in an improper kickback arrangement and you would like more information about how this may be the grounds for bringing a whistleblower lawsuit, the qui tam lawyers at Keller Grover LLP can help you.  The whistleblower lawyers at Keller Grover understand qui tam litigation, including the whistleblower protection provisions, and strive to achieve the best possible results for their clients.