The Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b), prohibits the payment or acceptance of payment to induce or reward any person for referring, recommending or arranging for the purchase of any item for which payment may be made under a federally-funded health care program. Thus the mere offer of a bribe is illegal under the statute. Offenses under the Anti-Kickback Statute also implicate the False Claims Act, because in theory any bill presented to a government healthcare program that has resulted from the payment of a kickback is artificially inflated by the cost of the bribe.
Kickbacks take many forms; indeed the form is perhaps the least important aspect of the bribe. The following may all be kickbacks if the intent is to induce a false claim on the government: educational grants; speaking fees; all-expenses-paid retreats; preceptorships; gifts e.g. free computers; and undisclosed discounts.
Our attorneys have represented whistleblowers in successful kickbacks cases, for example United States, et al. Collins v. Pfizer Inc., Civil Action No.04-11780-DPW (D. Mass.), in which the Department of Justice settled our client’s allegations of nationwide kickback scheme to induce the prescribing of some of Pfizer’s blockbuster drugs including Lipitor, Norvasc and Viagra. This case, along with a number of other qui tam suits, settled for a record-breaking criminal fine of $1.3 billion and a civil settlement of $1 billion.
The case of United States ex rel Kassie Westmoreland v Amgen et al., (Civil Action No. 06-10972-WGY) alleged that the “overfill” in the vials of Amgen’s blockbuster Aranesp, was used as a “liquid kickback” in a nationwide scheme spanning an entire decade. That case has been settled in principle along with a series of other qui tam cases for a total of $780 million.