Tag Archives: False Claims Act

Loan or Other Financial Obligation Forgiveness– A Continuing Fraud and Abuse Challenge

There are many health care financial arrangements where one entity has a financial obligation to another, with whom it either does business directly, or to which it makes referrals, and that obligation is either past due or for one reason or another cannot be paid. This may come up, for example, in the context of … Continue reading this entry

FCA's "First to File" Bar Retains Some Teeth

Granston Memo
Health care providers are under constant threat of lawsuits brought by whistleblowers under the federal civil False Claims Act, 31 U.S.C. §§ 3729, et seq. (FCA), the statute under which the government obtains most judgements against providers. These qui tam lawsuits can be costly even where they lack any merit, and counsel for providers are … Continue reading this entry

Leaked DOJ Memo Indicates New Government Focus on Dismissing Meritless False Claims Act Cases

Granston Memo
In a January 10, 2018 memo that leaked last week (the “Granston Memo”), the U.S. Department of Justice (DOJ) directs its prosecutors to more seriously consider dismissing meritless False Claims Act (FCA) cases brought by whistleblowers.  We have long argued DOJ dismissal is an underused tool provided by the FCA.  See “Dismissing FCA Cases Over … 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

FCA Penalties Slated to Nearly Double This Year

A little known federal agency, the Railroad Retirement Board (“Board”), which administers retirement-survivor and unemployment-sickness benefit programs for railroad workers, published an interim final rule on May 2, 2016 raising the amounts of penalties “under the Board’s jurisdiction.” Among these are the penalties authorized by the Federal False Claims Act (“FCA”).  The Board proposes increasing the … 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

The Who, What, and When for the CMS Final 60-Day Rule

Four years after the issuance of the Proposed Rule and six years after the authorizing statute, CMS has published the much-awaited Final Rule regarding reporting and returning of Medicare Part A and B overpayments (the “Final Rule”). 81 Fed. Reg. 7654-7684 (Feb. 12, 2016).  Since the inception of section 6402(a) of the Affordable Care Act … 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

Fasten Your Seat Belts: District Court Says “Failure to Act Quickly Enough” May Violate 60-Day Refund Rule

A New York Federal District Court issued an Opinion and Order, on August 3, 2015, in a closely-watched False Claims Act (FCA) case, Kane v. Healthfirst, Inc. The Court refused to dismiss the whistleblower complaint in which both the federal government and the State of New York have intervened. As important to this discussion, the … 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

CMS Delays Publication of Final Rule Regarding Reporting and Returning of Medicare Overpayments

One of the most challenging compliance changes brought about by the Affordable Care Act (ACA) is the provision mandating the reporting and refunding of Medicare and Medicaid overpayments within 60 days of the date they are identified, or the date that the corresponding cost report is due, if applicable. See ACA Section 6402(a); Section 1128J(d) … Continue reading this entry

Eleventh Circuit Affirms Dismissal of Relator’s Complaint Under Amended Public Disclosure Bar

In United States of America ex rel. Marc Osheroff v. Humana, Inc. et al., No. 13-15278 (11th Cir., Jan. 16, 2015), the Eleventh Circuit affirmed dismissal of a relator’s complaint under the public disclosure bar of the False Claims Act (FCA). The Court addressed several notable issues and provided insight as to how courts may … Continue reading this entry

How to Prepare Your Hospital or Medical Practice for a Meaningful Use Audit

New York Office of the Medicaid Inspector General Releases 2014-2015 Work Plan
For the past several years, the Centers for Medicare and Medicaid Services (“CMS”) has incentivized hospitals and eligible professionals to adopt and make “meaningful use” of certified electronic health records (“EHR”) technology through the Medicare and Medicaid Meaningful Use programs. Since the inception of these programs, over $16.6 billion in Medicare incentive payments and $8.6 … Continue reading this entry

CMS Says: Let's Make a Deal

In the hours before everyone began enjoying Labor Day Weekend, the Centers for Medicare & Medicaid Services (CMS) issued an important inpatient hospital review update. To expedite the appeals process and reduce the volume of inpatient status claims currently pending, “CMS is now offering an administrative agreement to any hospital willing to withdraw their pending … Continue reading this entry

Eighth Circuit Dismisses Whistleblower's Suit Finding Facts Were Already Publicly Disclosed

CMS Releases Medicare Part B Supplier Billing and Payment Data
In an August 7, 2014 opinion, the Eighth Circuit upheld the dismissal of a whistleblower’s suit alleging that a number of pain pump device makers had violated the False Claims Act (FCA) by marketing their pain pumps for harmful off-label uses. United States ex rel. Paulos v. Stryker Corp. et al., 8th Cir., No. 13-2509, 8/7/14. The … Continue reading this entry

Hospitals Urging SCOTUS to Limit False Claims Act Penalties

CMS Releases Medicare Part B Supplier Billing and Payment Data
What do a moving company and a hospital association have in common? The False Claims Act (FCA).  The American Hospital Association along with the United States Chamber of Commerce and the Pharmaceutical Research and Manufacturers of America recently submitted an amici curiae brief in support of petitioners, Gosselin World Wide Moving, urging the Supreme Court … Continue reading this entry

Healthcare Law: What Every Provider Should Know

Compliance
Healthcare is an incredibly broad, diverse and dynamic industry. Because of the breadth in the field, providers are surrounded by a wide array of legal issues relating to: employment contracts, taxes, business structure, medical malpractice, nonprofit organization, insurance, and reimbursement to name a few. However, although the field is riddled with potential legal issues, there … Continue reading this entry

OIG's Proposed Rule to Expand Civil Monetary Penalties

The Office of Inspector General (OIG) of the Department of Health and Human Services (HHS) on May 12, 2014 published a proposed rule (Proposed Rule) that would implement the OIG’s expanded authority under the Affordable Care Act (ACA) to impose Civil Monetary Penalties (CMPs) on providers and suppliers for “false and fraudulent claims and other … Continue reading this entry

CMS Releases Medicare Part B Supplier Billing and Payment Data

Potential for Increase in Whistleblower Litigation On April 8, 2014, The Centers for Medicare & Medicaid Services (CMS) released, with tremendous fanfare, hundreds of thousands of points of billing data regarding Medicare suppliers including some 880,000 physicians for 2012. These data are presented in an Excel format that makes searching and scanning easy. Within 48 … Continue reading this entry

Florida's False Claims Act - Did You Know It Changed Last Year?

In June 2013, Florida’s legislature significantly amended Florida’s False Claims Act, Fla. Stat. §§ 68.081-68.092 (“FFCA”), effective July 1, 2013. Although these amendments have not received much publicity or commentary, they considerably expanded the FFCA’s scope, among other important changes. Persons potentially subject to the FFCA, including those who seek and receive payments from the … Continue reading this entry