On November 14, Judge Edward Chen in the Northern District of California issued rulings on the pending motions to dismiss in U.S. ex rel. Osinek v. Kaiser Permanente, granting in part and denying in part Kaiser’s motion to dismiss. United States ex rel. Osinek v. Kaiser Permanente, No. 3:13-cv-03891-EMC, Dkt. No. 223 (N.D. Cal. Nov. 25, 2022). These rulings offer insight into the evolving landscape and permissibility of legal falsity claims predicated on sub-regulatory guidelines.

Background

The United States previously intervened in six qui tam complaints alleging that Kaiser violated the False Claims Act (FCA) by submitting inaccurate diagnosis codes for its Medicare Advantage beneficiaries, resulting in higher reimbursements. Specifically, the government had alleged two different theories of liability: (1) the addition of diagnosis codes to medical records via addenda that did not exist at the time of the visit were factually false; and (2) the addition of diagnosis codes that were unrelated to the patient visit via addenda were factually and legally false, even if clinically accurate. Continue Reading Judge Chen’s Message to Medicare Advantage Providers: ICD Guidelines Aren’t Suggestions

On October 17, the U.S. Supreme Court summarily denied three petitions asking the Court to resolve a growing circuit split on the application of Federal Rule of Civil Procedure 9(b) in False Claims Act lawsuits.

Continue Reading Third Time is Not the Charm – Supreme Court Denies Cert. on Rule 9(b) Split Again

Please join us for the 8th Annual Nashville Healthcare Fraud Conference hosted by Bass, Berry & Sims and the Tennessee Hospital Association. Eligible for more than seven hours of CLE credit (including ethics), this complimentary program will take place on December 8th in Nashville (full day). The conference will be broadcast virtually the mornings of December 15th and 16th. Continue Reading Register Now | 8th Annual Nashville Healthcare Fraud Conference

In a decision issued on September 30, Judge Andrew Carter of the U.S. District Court for the Southern District of New York denied Anthem Inc.’s motion to dismiss a government lawsuit filed in March 2020 claiming Anthem submitted inaccurate diagnosis data in conjunction with its Medicare Part C plans that resulted in alleged overpayments in violation of the False Claims Act (FCA).

Continue Reading SDNY Ruling in Anthem Sends a Signal to Medicare Advantage Litigants

In a September 2022 filing in U.S. ex rel. Osinek v. Kaiser Permanente, the Kaiser Permanente consortium defendants (Kaiser) highlighted the distinction between clinically inaccurate diagnoses (factual falsity) and clinically accurate but incorrectly coded diagnoses (legal falsity) and its relevance in False Claims Act (FCA) actions.

Continue Reading Medicare Advantage Plan Highlights Distinction for FCA Purposes between Clinically Inaccurate Diagnoses and Clinically Accurate Diagnoses that Allegedly Violate Subregulatory Guidelines