Health Law Advisor

When a provider or supplier of services bills the Medicare program and receives payment, but at a later date the program audits the claim and denies it, can the provider or supplier be relieved of any financial liability if it had a good faith belief that the service met all relevant coverage requirements, even when that belief is incorrect? In a recent decision, the U.S. Court of Appeals for the Sixth Circuit ruled that this relief is possible, and that administrative adjudicators must conduct an analysis under the “hold harmless” provision of the Social Security Act (the “Act”).[1]

[1] In Home Health, LLC v. Kennedy, 2026 WL 2147418 (6^th Cir., July 27, 2026); also available at: https://www.opn.ca6.uscourts.gov/opinions.pdf/26a0205p-06.pdf.

In 2010, as part of the Affordable Care Act, Congress resolved a highly litigated issue about whether a violation of the Anti-Kickback Statute (AKS) can serve as a basis for liability under the federal False Claims Act (FCA). Specifically, Congress amended the AKS to state that a “claim that includes items or services resulting from a violation of [the AKS] constitutes a false or fraudulent claim for purposes of the [FCA].” 

This amendment, however, did not end the debate over the relationship between the AKS and the FCA. Over the last several years, multiple courts have been called upon to interpret what it means for a claim to “result from” a violation of the AKS. Courts across the country are split on the correct standard. On February 18, 2025, the U.S. Court of Appeals for the First Circuit joined the Sixth and Eight Circuits in adopting a stricter “but-for” standard of causation—while the Third Circuit has previously declared that the government must merely prove a causal connection between an illegal kickback and a claim being submitted for reimbursement.