Patient Protection and Affordable Care Act Narrows Public Disclosure Bar While Making It Easier to Pursue Anti-Kickback Statute Violations

Signed into law on March 23, 2010, the Patient Protection and Affordable Care Act (the “Affordable Care Act”) narrowed the bar against bringing suits based on public disclosure by restricting the public disclosure bar to only information publically disclosed at the Federal level – not at the State or Local level.

The Affordable Care Act, however, broadened the definition of an “original source” to include, not only a relator with direct and independent knowledge of the information on which the allegations were based and that voluntarily provided that information to the government before filing suit, but also a relator who provides knowledge to the government before filing suit that is “independent of and materially adds to the publically disclosed allegations or transactions.”

The Affordable Care Act amends the Anti-Kickback Statute to provide that items or services resulting from an Anti-Kickback Statue violation are false for purposes of the FCA, disposing of the need to rely on a false certification theory of FCA liability.

Additionally, the Affordable Care Act settles the circuit split regarding the definition of “willfulness” in the Anti-Kickback Statute. Some courts required the government to prove that a defendant knew that the Anti-Kickback Statute prohibited the conduct at issue, while other courts disagreed. The new law, however, makes it clear that the Anti-Kickback Statute does not require the government to prove actual knowledge of a “known legal duty” that was being violated.

Posted in Anti-Kickback Statute, Original Source Exception, Public Disclosure BarNo Comments

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