In May 2002, the United States District Court for the Southern District of New York ruled that Congress did not intend "to subvert the DOJ's exclusive jurisdiction over the anti-kickback statute by grafting the FCA's qui tam provisions onto it." United States ex rel. Barmak v. Sutter Corp., 2002 U.S. Dist. LEXIS 8509, at *17 (S.D. N.Y. May 13, 2002). The plaintiff relator in Barmak brought a civil action under the qui tam provisions of the FCA alleging that defendants, Sutter Corporation and Orthologic Corporation, fraudulently obtained Medicare overpayments by, inter alia, paying kickbacks for patient referrals. More specifically, the relator alleged in his second amended complaint that the kickbacks violated the FCA because "[a] portion of the home patient referrals were for beneficiaries of federal health insurance programs which paid in part for services procured as a result of the inducement." Id. at *15-16.

Acknowledging authority in other jurisdictions to the contrary, the Barmak court expressed its unwillingness to allow a qui tam plaintiff to use the FCA as a vehicle for pursuing a violation of the antikickback statute. Although the Second Circuit has not addressed this precise issue, the Second Circuit has previously held in United States ex rel. Mikes v. Straus that "a claim under the Act [FCA] is legally false only where a party certifies compliance with a statute or regulation as a condition to governmental payment." Id. at *16-17, citing United States ex rel. Mikes v. Straus, 274 F.3d 687, 697 (2d Cir. 2001).

In dismissing the plaintiff's claims for illegal kickbacks in violation of the antikickback statute, the Barmak court explained that, unlike the FCA, the antikickback statute is a felony criminal statute and that "there is absolutely no private right of action provided and the statute is to be enforced by the Department of Justice [ ] through the appropriate United States Attorney's office." Barmak, 2002 U.S. Dist. LEXIS 8509, at *17. Moreover, in light of the plaintiff relator's vague pleadings, the court expressed its reluctance to presume that a violation of the antikickback statute is ipso facto a violation of the False Claims Act.

The Barmak court also stated that the plaintiff failed to plead a causal relation between the alleged violations of the antikickback statute and the submission of the claims for reimbursement. According to the court, plaintiff did not allege "any certification of compliance with the anti-kickback statute, or that the Government relied on such certification in making payments to Defendants." Id. at *18.