Whether an Anti-Kickback Statute violation makes a resulting Medicare or Medicaid claim "false" under the False Claims Act depends on where the case is litigated. Some circuits require the kickback to be a but-for cause of the claim. At least one requires only "some connection." Others have looked at the question and expressly declined to decide it. For an Eleventh Circuit matter, counsel should check controlling authority addressing the particular statutory theory and distinguish older kickback cases from interpretations of the 2010 amendment. For a defendant, that means the governing causation standard is often a function of the forum, and treating the question as settled nationwide is a mistake. This article separates four issues that get run together, remuneration, causation, scienter, and materiality, and identifies which ones are actually open and where.
A note on authority before the analysis. A United States Supreme Court holding controls everywhere. A federal court of appeals decision controls only in its own circuit and is persuasive elsewhere. A federal district court decision is persuasive only. The map below keeps those levels distinct, because a rule that is controlling in the First Circuit may be no more than persuasive in the Eleventh.
Causation: a real split, not a single rule
The 2010 amendment to the Anti-Kickback Statute provides that a claim "resulting from" a kickback is a false claim under the FCA. 42 U.S.C. § 1320a-7b(g). What "resulting from" requires is the live question. The Supreme Court has held, in a different statutory context, that "results from" ordinarily imports actual, but-for causation. Burrage v. United States, 571 U.S. 204 (2014). The circuits have divided on whether that carries into the Anti-Kickback setting.
| Circuit | Position on "resulting from" | Case |
|---|---|---|
| First | But-for cause required | United States v. Regeneron Pharmaceuticals, Inc., 128 F.4th 324 (1st Cir. 2025); United States ex rel. Flanagan v. Fresenius Medical Care Holdings, 142 F.4th 25 (1st Cir. 2025) |
| Sixth | But-for cause required | United States ex rel. Martin v. Hathaway, 63 F.4th 1043 (6th Cir. 2023) |
| Eighth | But-for cause required | United States ex rel. Cairns v. D.S. Medical LLC, 42 F.4th 828 (8th Cir. 2022) |
| Third | "Some connection" between the kickback and the later claim; rejects both pure taint and but-for | United States ex rel. Greenfield v. Medco Health Solutions, 880 F.3d 89 (3d Cir. 2018) |
| Fourth | Addressed and expressly reserved | United States ex rel. Kyer v. Thomas Health System, 178 F.4th 119 (4th Cir. 2026) |
| Seventh | Requires a "causal nexus" but did not choose a side | Stop Illinois Health Care Fraud, LLC v. Sayeed, 100 F.4th 899 (7th Cir. 2024) |
The important discipline here is not to flatten this into a two-sided split. Three things are happening at once. The First, Sixth, and Eighth Circuits have held that but-for causation is required. The Third Circuit has held that a lesser "some connection" showing suffices. And the Fourth and Seventh Circuits have looked at the question and declined to resolve it, which is not the same as taking a side. The Fourth Circuit in Kyer set out the split in a footnote and then explained that because the complaint failed to allege a kickback violation at all, under the pleading standard of Federal Rule of Civil Procedure 9(b), it had no occasion to reach causation. A reserved question is an open question in that circuit, not a vote.
Remuneration: a separate disagreement
Causation is not the only Anti-Kickback element the circuits read differently, and the second disagreement is often conflated with the first. In Martin, the Sixth Circuit also narrowed the statute's "remuneration" element, reading it to require a payment or transfer of value and invoking the rule of lenity because the Anti-Kickback Statute carries both civil and criminal consequences. The Fourth Circuit disagreed with that reasoning in Pharmaceutical Coalition for Patient Access v. United States, 126 F.4th 947 (4th Cir. 2025), a civil challenge to an agency advisory opinion. That is a distinct point of inter-circuit disagreement, on a different element than causation, and it should be analyzed separately rather than folded into the causation split.
Scienter: what the defendant knew
The FCA knowledge analysis focuses on actual knowledge, deliberate ignorance and reckless disregard. In United States ex rel. Schutte v. SuperValu Inc., 598 U.S. 739 (2023), the Supreme Court held that FCA scienter turns on the defendant's own knowledge and subjective beliefs, not on what an objectively reasonable person might have understood. A defendant who actually believed a claim was false does not escape liability because the governing language could, in hindsight, bear an objectively reasonable innocent reading.
Two consequences follow for the defense. First, Schutte resolved scienter, not falsity. Proving what a defendant knew is a separate element from proving that the claim was objectively false, and the two should not be argued as one. Second, the government-knowledge and materiality defense discussed next remains available even where subjective knowledge is arguable. The open work after Schutte is application in the circuits, not the framework itself.
Materiality and the government’s payment decisions
In Universal Health Services v. United States ex rel. Escobar, 579 U.S. 176, 194–95 (2016), the Supreme Court required a demanding materiality analysis. A condition-of-payment label is relevant but does not settle the question. Continued payment despite actual knowledge of a violation can strongly support a lack-of-materiality argument; the significance depends on what the government knew and how it responded. Escobar, Part III
Counsel should identify the payment requirement, the alleged noncompliance, the government’s knowledge and its payment practices. The label alone neither establishes materiality nor automatically defeats a defense.
A related but distinct element: falsity
Falsity is separate from knowledge and causation. United States v. AseraCare, Inc., 938 F.3d 1278 (11th Cir. 2019), addressed terminal-illness certifications for hospice care. Reasonable expert disagreement alone was insufficient to establish falsity, but the court remanded for consideration of other record evidence. Opinion, pp. 2–3
Its application depends on the clinical determination and reimbursement rules at issue. It should not be treated as a universal defense to inaccurate coding or as a substitute for examining the full evidence.
What this means for an Eleventh Circuit defendant
For cases in Florida, Georgia and Alabama, distinguish controlling Eleventh Circuit holdings from persuasive decisions elsewhere. Check whether an opinion addresses the post-2010 statutory causation question, the substantive kickback violation or a different FCA theory. A reserved question supplies no holding on the standard that will ultimately apply.
Counsel evaluating an Anti-Kickback or False Claims Act matter should ask which causation standard the forum applies or has left open, whether the remuneration element is actually met, what the defendant knew as distinct from what a reasonable person might have known, whether the alleged violation was material to payment, and what evidence supports or disputes falsity under the applicable payment rules. The firm's Federal Health Care Fraud Defense Report develops these questions in its core-defense and special-topics sections, and our companion articles cover Medicare Advantage risk adjustment and the mechanics of a qui tam case. If you are analyzing exposure under either statute, we are available to discuss the specifics.
Sources and further reading
Explore the Healthcare Fraud resource hub or contact the firm to discuss your circumstances.
