Publication Date



Qui tam suits in the health-care industry increasingly
target pharmaceutical and medical-device manufacturers
rather than the medical providers who directly make
claims to federal health-insurance programs. These suits
commonly argue that the manufacturer induced the
provider to falsely certify compliance with federal and
state antifraud laws, such as the Anti-Kickback Statute.
This Note shows that suits based on such "implied
certification"of adherence to laws should not be permitted
under the Federal False Claims Act unless the
non submitting defendant is first convicted of providing a
kickback. First, this Note analyzes recent amendments to
the Anti-Kickback Statute in the Affordable Care Act and
explains how these amendments lower two bars to False
Claims Act suits in the health-care context that commonly
protect non submitting defendants. The Affordable Care
Act also indicates that a kickback may be a basis for a
false or fraudulent claim, but the statute's language limits
this to qui tam suits brought after a criminal conviction.
Second, this Note shows that qui tam suits against
defendants who make no direct claim for payment to the
government interfere with other antifraud initiatives and
that this interference supports constraining a private
party's ability to sue on the government's behalf when the
claim is only based on inducing a false implied
certification of complying with the law.