(Ewing Dec.) Accordingly, the Beneficiary Inducement Statute is inapplicable as its prohibitions are limited to payments affecting beneficiaries of Medicare and state health care programs. See generally 42 U.S.C. § 1320a-7a(a)(5). Similarly, it is anticipated that McGilberry may argue the circumstances at issue would have violated the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b, and/or Mississippi’s Medicaid Fraud Control Act, MISS.

III. Lack of Standing and Subject Matter Jurisdiction Although Relator’s SAC does not clearly articulate a recognizable claim for relief or cause of action, it references claimed violations of Social Security Act § 1128A(a)(1) (codified at 42 U.S.C. § 1320a-7a(a)(1)) and criminal violations of 18 U.S.C. § 1035 and 18 U.S.C. § 1347. Unlike the FCA, these statutes do not contain citizen suit provisions that allow commencement of an action on behalf of the United States.

This is reflected by the consistent use of the present tense in § 1345(a)(1), which authorizes injunctions against people who are “committing” or who are “about to commit” certain violations, versus speaking of people who have committed a violation. Cf., e.g., 42 U.S.C. § 1320a-7a(k) (allowing injunctive relief against any person who “has engaged” in health care fraud). Federal courts have thus limited any grant of injunctive relief under § 1345(a)(1) to situations where the alleged fraudulent scheme to be stopped is “ongoing and there exists a threat of continued perpetration,” thereby emphasizing that “the statutory equitable remedy [under § 1345] is not available for Case 1:16-cv-23148-KMW Document 72 Entered on FLSD Docket 12/05/2016 Page 17 of 49 solely past violations.”

Defendants would also have been subject to other monetary penalties and FCA liability. See 42 U.S.C. §§ 1320a-7a(a)(10), -7k(d). Defendants’ falsification of those patient files thus clearly constituted the making of a “false record or statement” that was “material” to Defendants’ potential obligation to repay any overpayments improperly obtained from the Government.

See 42 U.S.C. §§ 1395nn(g)(3), 1320a-7a(a). In pertinent part, the Stark statute provides: Except as provided in subsection (b) of this section, if a physician (or an immediate family member of such physician) has a financial relationship with an entity specified in paragraph (2), then – (A) the physician may not make a referral to the entity for the furnishing of designated health services for which payment otherwise may be made under this subchapter, and (B) the entity may not present or cause to be presented a claim under this subchapter or bill to any individual, third party payor, or other entity for designated health services furnished pursuant to a referral prohibited under subparagraph (A).

— (1) IN GENERAL.—An incentive payment made by a hospital to a physician under and in accordance with a demonstration project shall not constitute— (A) remuneration for purposes of section 1128B of the Social Security Act (42 U.S.C. 1320a-7b); (B) a payment intended to induce a physi- cian to reduce or limit services to a patient entitled to benefits under Medicare or a State plan approved under title XIX of such Act in violation of section 1128A of such Act (42 U.S.C. 1320a-7a); or (C) a financial relationship for purposes of section 1877 of such Act (42 U.S.C. 1395nn). (2) PROTECTION FOR EXISTING ARRANGE- MENTS.