Court Orders New Trial, Narrows Anti-Kickback Liability for Marketers
The U.S. District Court for the Northern District of Texas ordered a new trial in United States v. Gray, finding evidence insufficient to show a laboratory's marketing arrangement improperly influenced physician decision-making under the Anti-Kickback Statute. The defendant controlled laboratories performing cardiovascular genetic testing that contracted with a marketing firm to contact Medicare beneficiaries and send pre-filled order forms to their physicians; a jury had convicted him of conspiracy, money laundering and health care kickbacks. The Court found physicians, not marketers, were the relevant decision-makers, noting they rejected 80% to 90% of order forms and received no remuneration, and cited the Seventh Circuit's Sorensen decision in concluding compensated marketing alone does not establish AKS liability without evidence of intent to improperly influence referral decisions.