Category Archives: Litigation

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Lessons Learned from 2017 OCR HIPAA Enforcement Actions

So far 2017 is proving to be an active year for Health Insurance Portability and Accountability Act (HIPAA) enforcement. This comes on the heels of 2016, which saw an unprecedented level of enforcement actions, with 13 total settlements and nearly a 300 percent increase in total collected fines over 2015. To date in 2017, nine … Continue reading this entry

Key Takeaways From FHA’s Health Law Summit

Foley recently co-hosted the Florida Hospital Association’s (FHA) 2017 Health Law Summit, which brought together more than 40 in-house attorneys and compliance officers from FHA member hospitals to discuss the current state and future direction of the health care industry.… Continue reading this entry

FTC Again Finds Success in High-Profile Hospital Merger Appeal

CMS Releases Medicare Part B Supplier Billing and Payment Data
For the second time in recent weeks, the Federal Trade Commission (FTC) prevailed in its challenge of a high-profile hospital merger. This time, the appeal stemmed from a June 14, 2016, order by Judge Jorge Alonso of the Northern District of Illinois denying the FTC’s motion to enjoin the merger of the thirteen-hospital Advocate Health … Continue reading this entry

Seventh Circuit Applies Escobar’s Materiality Standard to (Again) Reject False Certification Claim

The Escobar and Sanford-Brown Decisions This summer, the United States Supreme Court undertook to resolve the long-running circuit split over the validity and scope of the implied false certification theory of liability under the False Claims Act (“FCA”). The theory treats a payment request to the Government as an implied certification of compliance with relevant … Continue reading this entry

Supreme Court Implied False Certification Case Reargued to First Circuit

On Tuesday, October 25, 2016, a three-judge panel of the United States Court of Appeals for the First Circuit heard argument in United States ex rel. Escobar, et al. v. Universal Health Services, Inc.  This case was sent back to the First Circuit by the United States Supreme Court in Universal Health Servs., Inc. v. … Continue reading this entry

AHCA Sues to Enjoin Prohibition on Binding Arbitration

On October 4, 2016 CMS issued its Final Rule entitled “Reform of Requirements for Long Term Care Facilities” which updates the requirements for all SNFs and NFs participating in Medicare and Medicaid. Many of the changes impact quality of care, discharge, behavioral health issues and related issues associated with the general direction of CMS to … Continue reading this entry

FTC Battles Hospital Mergers: What to Watch for in this Summer’s High-Profile Appeals

CMS Releases Medicare Part B Supplier Billing and Payment Data
In a town that is no stranger to landmark hospital merger cases, last month a Chicago federal judge denied the Federal Trade Commission’s (FTC) motion for a preliminary injunction to temporarily block a merger between 13-hospital Advocate Health Care and four-hospital NorthShore University HealthSystem, both located in the city’s northern suburbs. Judge Jorge Alonso’s much-awaited, … Continue reading this entry

Injunction Enjoining Enforcement of HHS Attestation Rule Affirmed

The Court of Appeals for the District of Columbia affirmed the District Court’s decision in Central United Life v. Burwell on July 1, 2016. This decision is very significant for those assessing the future strength of, and compliance framework for, the fixed indemnity market. Central United Life v. Burwell enjoined the U.S. Department of Health … Continue reading this entry

DOJ and North Carolina Challenge Anti-Steering and Tiering Provisions in Managed Care Contracts

CMS Releases Medicare Part B Supplier Billing and Payment Data
The Department of Justice’s antitrust division (the “DOJ”)and the State of North Carolina (“NC”) jointly sued, on June 9, 2016, Carolinas HealthCare System (“CHS”), the largest healthcare system in North Carolina, over anti-steering restrictions in its managed care contracts that the DOJ believes limits competition. In its complaint, the DOJ and NC claim that CHS used its … Continue reading this entry

Judge Allows Advocate-NorthShore Merger to Proceed; FTC May Appeal

For the second time in just over a month, a federal judge has denied a Federal Trade Commission (FTC) motion to enjoin the merger of two hospital systems, this time the 13-hospital Advocate Health Care and the 4-hospital NorthShore University Health System, both located north of Chicago. The order denying the preliminary injunction will be … Continue reading this entry

House of Representatives v. Burwell: Another Blow to Obamacare

Obama Announces Affordable Care Act Enrollment Crosses the 8 Million Mark
Federal Judge Rosemary Collyer’s May 12, 2016 ruling in House of Representatives v. Burwell, found that the Obama administration (the “Administration”) has been improperly funding an Obamacare subsidy program. House of Representatives v. Burwell involves two sections of The Patient Protection and Affordable Care Act (the “ACA”): Sections 1401 and 1402. Section 1401 provides tax … Continue reading this entry

Federal Judge Refuses FTC Request to Block Hershey/Pinnacle Deal; FTC to Appeal

Hospitals and other providers who have been tracking Federal Trade Commission (FTC) and Department of Justice Antitrust Division hospital merger challenges over the last several years will want to take note of the federal district court opinion issued earlier this week denying the FTC’s motion for an injunction to prevent 551-bed Penn State Milton S. … Continue reading this entry

Supreme Court Hears Argument on Scope of False Claims Act

New York Office of the Medicaid Inspector General Releases 2014-2015 Work Plan
Companies doing business with the government are facing an unprecedented increase in liability risk as federal authorities and individual whistleblowers (called “relators”) aggressively use the Federal False Claims Act (“FCA”), 31 U.S.C. §§ 3729-3733, to allege an array of frauds on a broad range of government programs. The FCA exposes companies to millions of dollars … Continue reading this entry

Differences in Medical Opinion Are Not False Claims Act Violations

In an important win for hospice and other health care providers facing claims under the False Claims Act (FCA), a federal court in Alabama gave a summary judgment victory last week to hospice provider Aseracare Inc. Key Takeaway A difference in medical opinion between the Government’s expert physician and the physicians who certified a patient’s … Continue reading this entry

Amarin Pharma Settles First Amendment Claims Against FDA: Potential Implications

Irish drug company Amarin Pharma, Inc. (Amarin) and the U.S. Food and Drug Administration (FDA) agreed, on March 8, 2016, to settle claims that FDA regulations barring Amarin from making “truthful” and “non-misleading” statements about off-label uses for its omega-3 drug, Vascepa, violated Amarin’s right to engage in constitutionally protected speech. The underlying claims and settlement may have … Continue reading this entry

DOJ Provides Guidance on Prosecution of Individuals

The Department of Justice (DOJ) long has required entities seeking credit for cooperating with its investigations to provide what it terms “full and truthful” cooperation. In policies memorialized over time, DOJ has been careful to encourage companies to voluntarily come forward, yet has refrained from identifying exactly what it means to be “cooperative.” DOJ now … Continue reading this entry

Second Circuit Reinstates Mental Health Parity Case Against UnitedHealth

CMS Releases Medicare Part B Supplier Billing and Payment Data
In late August the U.S. Court of Appeals for the Second Circuit reinstated a lawsuit by a physician association against a third-party plan administrator. The case against UnitedHealth Group and related entities (United) had been dismissed by the United States District Court for the Southern District of New York. The appellate opinion is significant both because it … Continue reading this entry

Are FCA Retaliation Claims Against Supervisors, Executives Viable?

CMS Releases Medicare Part B Supplier Billing and Payment Data
When the False Claims Act (FCA) retaliation provision was amended in 2009, the amendment was not explicit as to whether plaintiffs could only recover for retaliation claims against companies, or whether plaintiffs also could bring successful retaliation claims against the individuals within the company alleged to have retaliated, such as supervisors or executives. Federal courts … Continue reading this entry

What to Expect From HHS-OIG's New Litigation Team

CMS Releases Medicare Part B Supplier Billing and Payment Data
The Office of Inspector General at the U.S. Department of Health and Human Services (“HHS-OIG”) announced, on June 30, 2015 (during a health care conference), the creation of a new litigation team that will focus solely on levying fraud-based civil money penalties and excluding providers from Medicare and Medicaid for committing fraud. The point is to … Continue reading this entry

How Does the King v. Burwell Decision Affect the Affordable Care Act?

The Supreme Court handed the Obama administration a key victory this morning, upholding the tax credits that allow many low-income Americans to purchase health care insurance in states where the federal government is running the insurance marketplace. These tax credits, available to Americans with household incomes between 100% and 400% of the federal poverty line, operate … Continue reading this entry

Insurer Wrongfully Passed Sequestration Cuts Through to Providers

CMS Releases Medicare Part B Supplier Billing and Payment Data
A Pennsylvania judge found, on May 6, 2015, that a Medicare Advantage Plan had no right under its participation agreements to pass CMS sequestration reductions through to participating providers. Judge R. Stanton Wettick Jr. in the Allegheny Court of Common Pleas granted summary judgment to a group of hospitals that sued Highmark Inc. and its affiliate … Continue reading this entry

Court Rules: Standard for Evaluating Reimbursement of Skilled Nursing Medicare Claims Was Material Improvement

CMS Releases Medicare Part B Supplier Billing and Payment Data
A False Claims Act (“FCA”) lawsuit in Georgia was dismissed on March 31, 2015, after a federal district judge ruled that the government’s expert witnesses used the wrong standard to determine whether certain skilled therapy services were reimbursable under Medicare Part A (United States ex rel. Lawson v. Aegis Therapies, Inc., S.D. Ga., No. 2:10-cv-00072-LGW-RSB, … Continue reading this entry

SEC Brings Enforcement Proceeding Relating to Confidentiality Agreements That May Stifle Whistleblowers

CMS Releases Medicare Part B Supplier Billing and Payment Data
After repeated public statements warning companies that might seek to stifle whistleblowers, the U.S. Securities and Exchange Commission (SEC) has brought its first enforcement action relating to language in confidentiality agreements that the SEC believes could impede whistleblowers from reporting potential violations of the securities laws. As discussed in more detail below, this action suggests … Continue reading this entry

SEC Turns Up the Heat on Issuer Officials

New York Office of the Medicaid Inspector General Releases 2014-2015 Work Plan
Two recent SEC enforcement actions demonstrate that the Securities and Exchange Commission remains intently focused on the municipal market and, in particular, on officials participating in financings that fail to accurately and completely disclose material information. In an action arising from defaulted bonds sold by a Michigan city to develop a soundstage, the SEC successfully brought … Continue reading this entry