Why Thompson is Wrong: Misuse of the False Claims Act to Enforce the Anti-Kickback Act

Alabama Law Review, Vol. 51, Pp. 1-55, Fall 1999

42 Pages Posted: 29 Jun 2000

See all articles by John T. Boese

John T. Boese

Fried, Frank, Harris, Shriver & Jacobson LLP

Beth C. McClain

Fried, Frank, Harris, Shriver & Jacobson LLP

Abstract

An increasing number of qui tam suits filed under the whistleblower provisions of the civil False Claims Act are premised on alleged violations of the Anti-Kickback Act, a criminal law with no private right of action. In July 1998, the Southern District of Texas opened the door for self-appointed private prosecutors to bootstrap such violations onto the civil False Claims Act, by denying the defendants' motion to dismiss in United States ex rel. Thompson v. Columbia/HCA Healthcare Corporation.

This article analyzes three primary reasons the decision in Thompson is wrong: 1) The Thompson court accepts the argument that Medicare payments are conditioned on blanket certifications of compliance with health care laws and regulations, an assertion that is contrary to the government's practice of ignoring certain technical violations of the Anti-Kickback Act through Department of Health and Human Services Advisory Opinions; 2) It assumes that every violation of the Anti-Kickback Act will be successfully prosecuted by the government; and 3) It permits a claim under the "reverse false claims" provision of the False Claims Act, improperly seeking to transform an inchoate, potential and undetermined liability under the Anti-Kickback Act into a present obligation to pay the government under the FCA.

JEL Classification: K14, K23, K41, K42

Suggested Citation

Boese, John T. and McClain, Beth, Why Thompson is Wrong: Misuse of the False Claims Act to Enforce the Anti-Kickback Act. Alabama Law Review, Vol. 51, Pp. 1-55, Fall 1999, Available at SSRN: https://ssrn.com/abstract=224247 or http://dx.doi.org/10.2139/ssrn.224247

John T. Boese (Contact Author)

Fried, Frank, Harris, Shriver & Jacobson LLP ( email )

801 17th Street, NW
Washington, DC 20006
United States
202-639-7220 (Phone)
202-639-7003 (Fax)

Beth McClain

Fried, Frank, Harris, Shriver & Jacobson LLP ( email )

801 17th Street, NW
Washington, DC 20006
United States

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