Due to the infrequency in which the situation arises, the FCA’s “alternate remedy” provision is infrequently invoked or discussed. In short, this provision states that when the relator presents information about a potential FCA claim for the Government to investigate, the Government has the option to pursue this claim through “any alternate remedy available to… Continue Reading
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Third Circuit Finds that FCA Retaliation Claims Require a Showing of “But-For” Causation
Earlier this year, the Third Circuit Court of Appeals affirmed the decision of the United States District Court for the Eastern District of Pennsylvania in the case of DiFiore v. CSL Behring, LLC. DiFiore v. CSL Behring, LLC, 879 F.3d 71, 73 (3d Cir. 2018). The opinion set forth the precedent that “but-for causation” is required… Continue Reading
Caris Healthcare Pays $8.5M to Settle FCA Case
Caris Healthcare, L.P. has entered an agreement with the DOJ in which it has agreed to pay $8.5 million to resolve allegations that it violated the False Claims Act. The qui tam action was filed in the Eastern District of Tennessee by a registered nurse who was formerly an employees of Caris Healthcare. The former employee… Continue Reading
Eleventh Circuit Expands the Divide on the FCA’s Statute of Limitations
The FCA’s statute of limitations, 31 U.S.C. § 3731(b), has been a source of confusion and disagreement amongst the courts and litigants for years. The disagreement is focused primarily on whether a relator in a non-intervened case can take advantage of the three-year government knowledge/ten-year lookback provision under subsection (b)(2) or whether the relator is… Continue Reading
Healogics Settles False Claims Case Involving Allegations of Medically Unnecessary Procedures
The United States Attorney’s Office for the Middle District of Florida recently settled a False Claims Act case against Healogics, Inc. (“Healogics”) in which it was alleged that Healogics had knowingly billed Medicare for medically unnecessary and unreasonable hyperbaric oxygen therapy (“HBO therapy”). Under the settlement, Healogics agreed to pay $17.5 million, plus an additional… Continue Reading
Former DOJ Prosecutor Pleads Guilty After Attempting to Sell Sealed False Claims Act Cases to the Target Defendants
A former prosecutor for the United States Department of Justice has pled guilty to attempting to sell sealed False Claims cases to the defendants in those cases and to transporting stolen goods across state lines. Jeffrey Wertkin was a DOJ prosecutor who had entered private practice with Akin Gump Strauss Hauer & Feld. Mr. Wertkin… Continue Reading
Ninth Circuit’s Application of the FCA’s Government-Action Bar Provides Finality to Defendants
The FCA contains several provisions that are aimed at discouraging “parasitic” or duplicative qui tam actions. One such provision, known as the “government-action bar,” prohibits relators from bring a qui tam action “based upon allegations or transactions which are the subject of a civil suit . . . in which the Government is already a… Continue Reading
Ninth Circuit Denies Arbitration of a Relator’s FCA Claims
On September 11, 2017, in United States and State of Nevada ex rel. Welch v. My Left Foot Children’s Therapy, LLC, the Ninth Circuit held that an arbitration agreement between an employee-relator and her former employer was not broad enough to cover the Relator’s whistleblower claims under the FCA. This opinion raises questions as to… Continue Reading
Government Increases Civil Monetary Penalties Again
The Department of Justice has announced new, increased civil penalties that are applicable under the False Claims Act (FCA). The new range of FCA penalties is from $10,957 to $21,916. These increased statutory penalties reflect a continuing, inflation-based increase to the available statutory penalties. This marks the second year in a row in which the applicable penalties under… Continue Reading
First Circuit Finds that the Allegations in Escobar Satisfy the Supreme Court’s Materiality Requirements
The United States Supreme Court’s landmark decision in Escobar, which we have discussed previously, upheld the use of the implied certification theory where the implied certification of statutory/regulatory compliance is material to the government’s decision to pay the claims at issue. See generally Universal Health Servs., Inc. v. United States and Commonwealth of Mass. ex… Continue Reading
Seventh Circuit Finds that Pharmacy Discount Programs Are Not Exempt from the Definition of “Usual and Customary”
Created in 2006, Medicare Part D is a government program that subsidizes the cost of prescription drugs to Medicare beneficiaries. The program is run through “Plan Sponsors” – private entities that receive a fixed monthly payment from the Center for Medicare and Medicaid Services (“CMS”) and subcontract with Pharmacy Benefit Managers to provide prescription drug… Continue Reading
Supreme Court Hears Arguments Regarding the Implied Certification Theory
On April 19, 2016, the United States Supreme Court heard oral arguments in the case of Universal Health Services v. U.S. ex rel. Escobar. The Universal Health Services case was brought by two relators whose child had been seeing a counselor at UHS and who came to learn that the counselor was not licensed. The relators’ child… Continue Reading
Relators Recover Over $1 Billion in Non-Intervened Cases in Fiscal Year 2015
In fiscal year 2015, more than $1 Billion of the Government’s False Claims Act (FCA) recovery was derived from cases in which the Government declined to intervene. This significant recovery far exceeds the typical, annual recovery that is obtained by relators without Government intervention. During the past decade, the Government has intervened in approximately 20-24%… Continue Reading
Third Circuit Ruling Reflects the Narrowed Scope of the Public Disclosure Bar under the Affordable Care Act
The public disclosure bar is a statutorily created hurdle that plaintiffs must cross to successfully maintain a False Claims Act suit. The principle was originally enacted to prevent individuals from filing “parasitic” False Claims Act (FCA) lawsuits that were not based on their independent knowledge. The public disclosure bar has undergone several statutory changes during… Continue Reading
Federal Government Recovers $3.5 Billion from False Claims Cases in 2015
The United States Department of Justice has announced that it has recovered over $3.5 Billion from cases brought under the False Claims Act (FCA) in fiscal year 2015. This significant aggregate recovery is a slight decline from the $5.69 Billion that was recovered in fiscal year 2014; however, it is the fourth consecutive year in… Continue Reading
Mitigating FCA Whistleblower Risk When Employees Leave
Over the past decade, efforts to enforce health care fraud regulations have been bolstered significantly with increased government funding and a dramatic increase in whistleblower claims filed under the False Claims Act’s qui tam provisions. The majority of FCA civil litigation in 2014, approximately 70 percent, resulted from these whistleblower claims and the substantial majority… Continue Reading
First Circuit Applies Kellogg Brown & Root to Allow Relator to File Motion to Supplement Previously Dismissed Complaint
In United States ex rel. Gadbois v. PharMerica Corp., — F.3d —- (1st Cir. 2015), the First Circuit, in a matter of first impression, held that a relator’s complaint was not subject to dismissal under the first-to-file bar where an earlier-filed action based on the same underlying facts was settled and dismissed while the relator’s… Continue Reading
Defendants Obtain Summary Judgment In an FCA Action Because the Plaintiffs Failed to Identify Evidence of Specific False Claims
It is often stated that the sine qua non (the indispensable and essential action) of a violation of the False Claims Act (FCA) is the submission of a false or fraudulent claim. This principle has been recognized and cited in federal courts throughout the country. A recent case that was decided in the United States… Continue Reading
Supreme Court Clarifies the First to File Bar
The first to file bar is a limitation on the rights of members of the public to commence certain litigation under the FCA. In essence, the first to file bar prevents a member of the public from commencing an action based upon facts that have already been placed at issue in another piece of FCA litigation. Specifically, “[w]hen a person brings an action… Continue Reading
Supreme Court Rejects Application of Wartime Tolling to Civil False Claims Actions
The cost and risk associated with allegations under the FCA create a heightened importance on defining the scope of the claims that are at issue. Accordingly, the applicable statute of limitations is critical in determining both whether allegations of FCA are timely filed and in limiting the extent of the claims at issue if the… Continue Reading
Growing Use of Sampling in FCA Cases
In prior years, sampling has been at issue in FCA cases largely in the context of damages. Specifically, where there were allegations of a specific course of wrongful conduct that allegedly impacted large volumes of claims, sampling could be used to determine and extrapolate damages. However, a couple of recent decisions have suggested an expanded… Continue Reading
Fourth Circuit Holds that Internal Government Documents Do Not Constitute a Public Disclosure
On February 3, 2015, United States ex rel. Wilson v. Graham Cnty. Soil & Water Conservation Dist., No. 13-2345, 2015 WL 427649, 2015 U.S. App. LEXIS 1663 (4th Cir. Feb. 3, 2015), the Fourth Circuit Court of Appeals reversed the district court’s public disclosure bar dismissal, holding that reports circulated only amongst government officials does… Continue Reading
SDNY Offers an Instructive Opinion on Recovering Attorneys’ Fees in an FCA Action
In recent years, there has been a steadily increasing number of cases that have been brought under the False Claims Act by qui tam relators (whistleblowers). Between 2008 and 2014, the number of False Claims cases filed by such whistleblowers has grown from 379 cases filed in 2008 to 713 such cases being filed in… Continue Reading
6 Key Considerations Relating to Government Intervention in False Claims Cases
A significant number of cases that are brought under the False Claims Act are brought by qui tam relators (whistleblowers) who bring claims seeking relief on behalf of the Government. The number of whistleblower cases that are filed annually has nearly doubled between 2008 and 2014. The Government has a right to review and decide… Continue Reading