The Eleventh Circuit decision in United States ex rel. McNutt v. Haleyville Medical Supplies Inc., 423 F.3d 1256, further confirms the ability of the government to use the False Claims Act to civilly sanction violations of the antikickback statute. In McNutt, it was alleged the owners of a medical services company paid kickbacks camouflaged as rental payments and commissions to pharmacists and other individuals in order to induce referrals for various services. A former employee filed a qui tam action in December 2001; the Justice Department later intervened.

In arguing that they should not be liable for violations of the antikickback statute under the FCA, Haleyville suggested that the government sought "to hold them liable for nothing more than falsely certifying on a Medicare enrollment form that they would comply with the Statute." The Eleventh Circuit, though, based its conclusion not on the defendant's certification but rather on the submission of claims under circumstances in which the defendant should have known that the government did not owe on those claims. The court did not look to the certification and its alleged falsehood, but rather looked to the simple fact of submission of a claim by the defendants as forming the basis of an FCA violation.

The Eleventh Circuit's decision in McNutt represents a further solidification of the doctrine that violations of the antikickback statute and the Stark law can support claims against providers under the FCA, thereby making them liable for the treble damages and fine provisions of the Act. While the government may be reluctant to proceed criminally under the antikickback statute, the McNutt case demonstrates that the government can exact an equally devastating price from entities using the FCA.