The FCA Insider

The FCA Insider

Insights and updates on False Claims Act Litigation

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Uncategorized

Holding Executives Personally Responsible: An Increasing Government Priority

Earlier this month, we covered the Spectocor action which involved an executive and his company’s agreement to pay $10.56M of a $13.45M total settlement to resolve allegations involving medically unnecessary Medicare reimbursements. In another stark reminder that the Department of Justice has increased its focus on individual liability for corporate executives, as per the directive… Continue Reading
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New CMS Guidance on Inpatient Engagement Necessary for Hospital Certification

On Sept. 6, 2017, the Centers for Medicare and Medicaid Services (CMS) issued an advanced copy of guidance to state survey agency directors that is intended to clarify how to determine whether a hospital seeking Medicare certification, or going through a continuing certification survey, is “primarily engaged in providing inpatient services” under the Social Security… Continue Reading
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The Yates Memo: A Reminder that Executives are Vulnerable Too

The 2015 Yates Memo continues to impact federal prosecutions as the Department of Justice continues to seek accountability from individuals responsible for corporate wrongdoings. As the two year anniversary of the Yates Memo approaches, recent FCA litigation exemplifies the Yates Memo’s intentions. For example, on June 26, 2017, the DOJ reminded us once again that business executives may… Continue Reading
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Ninth Circuit Ruling Weakens Materiality Standard under the FCA

Last year in Universal Health Services, Inc. v. United States ex rel. Escobar et al. (discussed on this blog), the Supreme Court reminded litigants that the False Claims Act “is not an all-purpose antifraud statute.” In that case, the Court expanded upon the FCA’s materiality standard, calling it both “rigorous” and “demanding.” How demanding that standard would… Continue Reading
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Successor Liability and the False Claims Act

The Fourth Circuit recently provided guidance on a successor entity’s liability under the False Claims Act in United States ex rel. Bunk v. Government Logistics N.V., 642 F.3d 261 (4th Cir. 2016).  Bunk involved a bid-rigging scheme between freight operators who had submitted inflated bids to the Department of Defense.  The Gosselin Group and its… Continue Reading
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DOJ Announces Will Appeal Loss in AseraCare, Triggering Issues on Battle of the Experts, Statistical Sampling, and Bifurcation

$200 million and pivotal legal precedent are at stake in the False Claims Act (“FCA”) case against AseraCare, Inc. (“AseraCare”), a for-profit hospice chain that was alleged to have fraudulently submitted claims that falsely certified hospice eligibility for patients who were not terminally ill. In May 2016, the United States Department of Justice (“DOJ”) announced… Continue Reading
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Number of Medically Unnecessary False Claims Cases Likely to Diminish

The DOJ recently intervened in a lawsuit against Prime Healthcare Services, Inc., and its subsidiaries (“Prime”).  The lawsuit alleges that Prime submitted claims for medically unnecessary services and routinely pressured its staff to exaggerate Medicare beneficiaries illnesses in order to increase the number of inpatient admissions and billed for services as inpatient admissions that should… Continue Reading
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Tenth Circuit Elaborates Upon FCA’s Materiality Requirement

The FCA’s implied certification theory is based on the concept that every time a payee submits a claim to the government it has impliedly certified compliance with all contractual, statutory, and regulatory obligations, and therefore, is entitled to payment. While the courts are currently divided on whether implied certification is a valid theory of liability, the courts that… Continue Reading
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How Is a Relator’s Recovery in an FCA Settlement Taxed?

This rarely litigated question was presented to the Seventh Circuit in Patrick v. Commissioner of Internal Revenue, No. 14-2190, 2015 WL 5024985, — F.3d —- (Aug. 26, 2015). Previously, the First Circuit, in Fresenius Medical Care Holdings, Inc. v. United States, 763 F.3d 63, 71-72 (1st Cir. 2014), answered the related question of how an… Continue Reading
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CMS Releases Data Regarding Hospital and Physician Utilization

CMS recently announced that it would be releasing Medicare hospital utilization and payment data, as well as physician and supplier utilization and payment data. This is the third year that the hospital data has been released and the second year that the physician data has been released. Acting CMS Administrator Andy Slavitt explained that “[t]hese… Continue Reading
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Employer Antiretaliation Liability to Employees that Blow the Whistle against Former, Unrelated employers?

Does the False Claims Act’s antiretaliation provision, 31 U.S.C. § 3730(h)(1), apply to an “employer that fire[s] an employee after discovering that the employee was a whistleblower and relator in an ongoing qui tam action under the FCA against his former, unrelated employer”?  Cestra v. Mylan, Inc, No. 14-825, 2015 U.S. Dist. LEXIS 67069 (W.D.… Continue Reading