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One key difference between civil and criminal AKS violations

The government uses the Anti-Kickback Statute (AKS) to help better ensure doctors are not letting financial gain impact decisions about patient care. As a result, the government may make an AKS claim if a doctor is getting payment or has some financial benefit from an arrangement with other health care providers.

Allegations can result in a civil or criminal lawsuit.

The distinction between the two can be complicated. Criminal cases generally do not require the government provide proof a submission of a false claim to a federal health care program. In these cases, the mere fact of payment is proof enough. This is where civil claims differ. In a civil AKS violation claim, the government or other party building the claim against the accused must establish the accused made the submission in order to prove the illegal kickback occurred.

So how do courts determine what evidence meets this requirement? In truth, courts have struggled with this question. Some have found that if the government can establish a connection for one claim, all others are tainted while other courts reject this argument as overly broad.

It is likely the court will require the government to provide a causation standard with some specificity as opposed to using the taint theory to build a claim against the accused. However, those accused of these crimes are wise to note the complexity of these cases. As such, it is wise to seek legal counsel experienced in this niche area of health care law to provide counsel during the investigation and advocate for your interests in the event the investigation leads to allegations of wrongdoing.

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