Consistent with other recent decisions we have blogged about, the Third Circuit recently held in United States ex rel. Greenfield v. Medco Health Solutions, Inc., that to survive summary judgment, a relator must link alleged kickbacks to specific claims for payment submitted to the government; it is not enough to merely allege that the “taint” of a kickback scheme renders false every claim submitted while that scheme is ongoing. Finding no such link between the defendants’ Medicare claims and an alleged kickback scheme, the Third Circuit affirmed summary judgment for the defendants.
In this non-intervened qui tam suit, the relator, a former vice president of defendants Accredo Health Group and its affiliates, alleged that the company, a specialty pharmacy that provides home care for hemophilia patients, made donations to two charities in exchange for their recommendation of Accredo as an approved healthcare provider. The relator alleged that these donations were illegal kickbacks under the Anti-Kickback Statute (“AKS”) and Accredo violated the FCA because it submitted Medicare claims that falsely certified compliance with the AKS. The district court granted Accredo summary judgment, reasoning that the relator was required, but failed, to provide evidence that Accredo’s Medicare patients were referred to it as a result of its charitable donations.
The Third Circuit affirmed but stopped short of holding that a relator must show that the kickback-induced referrals “actually caused [patients] to use a particular healthcare provider.” The court held that while “proof that the underlying medical care would not have been provided but for the kickback” was unnecessary, the relator must specifically link the Medicare claims to the kickbacks by showing that Accredo submitted a claim for reimbursement for at least one patient that was referred by the charities. In holding that the relator failed to present evidence of such a link, the Third Circuit reasoned that it was insufficient “simply [to] demonstrate[e] that Accredo submitted federal claims while allegedly paying kickbacks” or to “hypothesiz[e] that at least some of [the charities’] recommendations must have been directed to federal beneficiaries because Accredo submitted claims for 24 federally insured patients during the relevant time period.” The court continued that “[a] kickback does not morph into a false claim unless a particular patient is exposed to an illegal recommendation or referral and a provider submits a claim for reimbursement pertaining to that patient.”
Greenfield thus reaffirms in the Third Circuit what several other circuits have recently held — there must be some connection between the alleged kickbacks and claims for payment — “temporal proximity” is insufficient to survive summary judgment under the FCA. An FCA plaintiff must put forth evidence that “tie[s] the alleged kickback to a specific false claim” — speculation simply will not do.