The vast majority of False Claims Act settlements involving kickback allegations have been instances where healthcare providers have allegedly received kickbacks for utilizing a manufacturer’s product. Recently, however, there have been a few successful recoveries where the alleged kickback recipient was not the ultimate decision-maker or even healthcare provider.

While this is an expansion of Anti-Kickback Statute (AKS) enforcement, it tracks the language of the Statue, which reaches “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, for example, the AKS potentially applies a kickback recipient who recommends a particular manufacturer’s product to a healthcare provider.

Indeed, this very fact scenario was at the heart of a recent $28 million False Claims Act recovery involving Omnicare, the nation’s largest nursing home pharmacy. In that case, it was alleged that Omnicare solicited and received kickbacks from pharmaceutical manufacturer Abbott Laboratories in exchange for its consultant pharmacists to recommend the prescription drug, Depakote, to nursing home physicians. Notably, while the Omnicare-employed consultant pharmacists reviewed nursing home residents’ medical charts and made recommendations about what drugs should be prescribed, the ultimate decision remained with the nursing home physician.

The government is interested in pursuing similar cases. With nursing homes, health systems, and provider groups increasingly seeking the advice of various consultants, people are encouraged to step forward to expose consultants who exchange recommendations for kickbacks. In the nursing home context, perhaps Principal Deputy Assistant Attorney General Benjamin C. Mizer, head of the Department of Justice’s Civil Division, said it best:

Kickbacks to entities making drug recommendations compromise their independence and undermine their role in protecting nursing home residents from the use of unnecessary drugs.

More information for whistleblowers is located at the Nolan Auerbach & White website.