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University of Chicago Legal Forum

Abstract

The 2010 amendment to the Anti-Kickback Statute (AKS) sought to strengthen federal healthcare fraud enforcement by clarifying that Medicare and Medicaid claims submitted to the government “resulting from” AKS violations constitute false claims under the False Claims Act (FCA). However, two words, “resulting from,” have created a deep circuit split over the requisite causation standard. The First, Sixth, and Eighth Circuits require but-for causation, demanding proof that false claims would not have been submitted but-for the illegal kickback. The Third Circuit adopted a looser standard, requiring only some evidence of the illegal kickback and the submitted claim. Rather than focus on the varying statutory interpretations used by the courts, this Comment argues that the circuit split should be resolved by examining the evidentiary burdens each standard imposes on litigants.

Drawing on burden-shifting frameworks from employment discrimination law, antitrust merger challenges, and fiduciary duty cases, this Comment proposes a burden-shifting approach to AKS-predicated FCA claims. Under this framework, plaintiffs would bear the initial burden of establishing a prima facie case connecting an AKS violation to submitted claims. The burden would then shift to defendants to rebut this presumption by demonstrating that claims would have been submitted regardless of any kickback. Finally, plaintiffs would retain the ultimate burden of persuasion. This approach addresses the information asymmetry inherent in healthcare fraud cases—where evidence of kickbacks often remains in defendants’ possession—while protecting against prosecutorial overreach. By leveling the evidentiary playing field, a burden-shifting framework offers a practical middle ground that serves both the government’s interest in combating healthcare fraud while not over prosecuting healthcare professionals with good intent.

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