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207.

Accordingly,

the

conspirators'

false

and

fraudulent

statements

and

material

omissions nullified the consent set forth in the PALs.

208.

Drug selection is fundamentally a medical judgment.

To be valid, a prescription

must

be

based

upon

a

doctor's

medical

evaluation

of

a

specific

patient.

By

choosing

the

preferred medications to fill prescriptions for ACE inhibitors, statins, antibiotics, pain

medications, and atypical antipsychotics, the conspirators made a medical judgment for a large

vulnerable population for financial gain rather than based on appropriate individualized patient

evaluation - unlawfully usurping the role of both the treating physician and the FDA.

209.

All state laws broadly prohibit filling a prescription with any drug other than the

one prescribed, and narrowly restrict the circumstances under which a pharmacist can choose

among different drugs. The switching that occUlTed pursuant to the PAL scheme took place

outside of circumstances in which a pharmacist might have legally made a switch and took place

for purely monetary reasons - so that the Defendant Manufacturers could obtain larger market

share for their pricier drugs. The switches violated state laws, contrary to the certifications

Defendant Manufacturers made as a condition of obtaining payment from the states.

210.

Each and every claim for the switched medications and refills caused to be made

by the Defendant Manufacturers lacked valid physician authorization and therefore constitutes a

false claim.

B.

THE KICKBACKS-FOR-SWITCHES SCHEME VIOLATED THE ANTI KICKBACK STATUTE, RENDING ALL CLAIMS SUBMITTED TO THE GOVERNMENT FOR DRUGS COVERED BY THE MARKET SHARE AGREEMENTS FALSE CLAIMS

211.

The

payments

made

by

Defendant

Manufacturers

to

Omnicare

(and

other

dispensing pharmacies) fit squarely within the AKS's definition of illegal remuneration. In

direct violation of the AKS, Defendant Manufacturers paid substantial sums of money to

58

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