Before 2010, violators of the Anti-Kickback Statute (AKS) could avoid False Claims Act (FCA) liability if claims for items or services borne of their kickback scheme were submitted to federal healthcare programs by a third party.  In 2010, as part of the Affordable Care Act (ACA), Congress attempted to close this loophole in the FCA by amending the AKS.  Under the amendment’s terms, claims submitted to federal healthcare programs for items or services “resulting from” an AKS scheme are false for the purposes of establishing FCA liability, regardless of who submitted the claims.

Although the amendment widened the FCA liability net, its language also raised a new question as courts grappled with what “resulting from” requires plaintiffs to prove in AKS-based FCA claims.  This Note examines how federal circuit courts have analyzed the amendment’s “resulting from” causation standard.  The U.S. Court of Appeals for the Third Circuit imposed a relaxed standard that requires plaintiffs to establish a connection that is less stringent than but-for causation, whereas the U.S. Courts of Appeals for the Sixth and Eighth Circuits concluded that a but-for standard is required by the amendment’s language.  This Note argues that a but-for causation standard, like the one adopted by the Sixth and Eighth Circuits, is the proper standard considering the amendment’s plain language.  Ultimately, this Note argues a but-for standard is likely to be adopted by the U.S. Supreme Court should the Court grant certiorari on the question of what “resulting from” in the 2010 AKS amendment requires.