U.S. Attorney Urges Broad View of Anti-Kickback Law in Allergan Case

In a qui tam suit brought against Allergan, the U.S. Attorney’s Office in Philadelphia argued that the Anti-Kickback Statute should be interpreted more broadly to bar payment in exchange for health care services paid for by the Government. The government made this argument in a Statement of Interest filed in the non-intervened case of U.S. ex. Rel. Nevyas, M.D. and Nevyas-Wallace, M.D v. Allergan, Inc. The AKS does not prevent Allergan from offering services as long as they do not do so to induce referrals.

In 2002, when Allergan introduced Restasis, a drug to treat dry eye, the company employed a division of 12-15 “eye care business advisers” who began giving free business advisory services. According to the complaint filed in the case, the advisers offered advisory and consulting services (marketing strategy and implementation, web development and strategic planning, practice efficiency, etc.) and explicitly requested that relators prescribe Allergan products.

Allergan argued that the advice and educational information disseminated and offered were free speech protected by the First Amendment.

The relators are represented by Pietragallo Gordon Alfano Bosick & Raspanti, LLP.

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