George B. Breen, Member of the Firm in the Health Care & Life Sciences and Litigation practices and Co-Chair of the firm’s National Health Care & Life Sciences Practice Steering Committee, in the firm’s Washington, DC, office, was quoted in Law360, in “High Court Petition Asks Justices: What's a 'Willful' Kickback?” by Hannah Albarazi. (Read the full version – subscription required.)

Following is an excerpt:

Does a "willful" act under federal anti-kickback law require a defendant to know that the conduct violates the law? That's the question a whistleblower is asking the U.S. Supreme Court to answer in order to resolve what the petition calls a circuit split on a key question of federal fraud prosecutions.

The answer could carry significant implications for future whistleblowers, patients, taxpayers and the healthcare industry more broadly, even as legal experts are divided over the question's ripeness.

Adam Hart, a former employee of McKesson Corp., brought the issue to the U.S. Supreme Court in early June, asking the justices to define the "willfulness" element of the Anti-Kickback Statute. The petition comes after the Second Circuit Court of Appeals in March affirmed the dismissal of his Anti-Kickback Statute-based False Claims Act case against the wholesale pharmaceutical distributor.

Hart urged the justices to weigh in on whether one must plead and prove that a defendant intentionally acted wrongfully, as the Second Circuit found, or whether defendants need only be on notice that their conduct was improper.

While Hart and some legal experts say this question is ripe for review by the U.S. Supreme Court, others warn that it may be premature and that the justices could end up making it harder to hold defendants accountable for government fraud, which is what Hart was trying to do in the first place. …

Tightening the Standard …

George B. Breen, an attorney with Epstein Becker Green who regularly defends healthcare providers in False Claims Act matters, argued that if the U.S. Supreme Court were to decide that a defendant can act "willfully" without showing that they knew they were acting unlawfully, it "would have the far-reaching potential to subject well-meaning parties" to exposure to Anti-Kickback Statute liability.

"At a bare minimum, there must be a need to show unlawful intent in order to subject a party to the potential of liability" under the statute, Breen told Law360.

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