February 01, 2018

Why Anti-Kickback Compliance Is Material to Federal Healthcare Payment

Scott C. Withrow, Esq., Withrow, McQuade & Olsen, LLP, Atlanta, GA

Since the Supreme Court’s 2016 unanimous decision on False Claims Act (FCA) materiality in Escobar,1 the government has successfully argued that compliance with the federal Anti-Kickback Statute (AKS)2 is material to federal healthcare payment.  Under the FCA, the term “material” means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.3   Materiality “look[s] to the effect on the likely or actual behavior of the recipient of the alleged misrepresentation.”4

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