We contributed an article addressing the mounting risks faced by private equity (PE) firms investing in the healthcare industry in the July/August 2023 issue of Mergers & Acquisitions Magazine. In the article, we delved into the complexities of this highly-regulated sector and the heightened attention it receives from government enforcement bodies. Continue Reading FCA Risk for Private Equity Investment in Healthcare for Mergers & Acquisitions Magazine
Taylor Chenery centers his practice on government compliance and investigations and related litigation, focusing on healthcare fraud and abuse issues. He has significant experience representing a wide variety of healthcare clients in responding to governmental investigations and defending False Claims Act lawsuits. Taylor also has significant experience in complex commercial litigation matters, ranging from class action lawsuits to private arbitrations.
Join us on September 13 for a webinar in which we will discuss responding to a government investigation and specifically responding to a CID.Continue Reading Register Now | How to Respond to a Civil Investigative Demand Webinar
I recently authored an article for the American Bar Association (ABA) Health Law Section detailing the growing need for private equity firms to consider the increased risk of False Claims Act (FCA) liability.
Continue Reading Increased False Claims Act Exposure for Private Equity Firms Investing in Healthcare
I recently outlined healthcare-related fraud and abuse laws in Tennessee as part of Thomson Reuters’ Practical Law survey. My content focused on Tennessee is part of a series that examines state-by-state laws and regulations addressing civil and criminal actions, consequences for violation, and Medicaid program integrity provisions.
Continue Reading Tennessee Healthcare Fraud and Abuse Laws
During the COVID-19 pandemic, many healthcare providers have relied on telehealth options to provide patients access to care. But, as I discussed in a recent article for Physicians Practice, “As long as utilization of telehealth services remains high, corresponding scrutiny and government enforcement efforts will remain focused on this area.”
In the article, I recommend ways that physicians and other providers can prepare for this additional scrutiny:Continue Reading Telehealth Scrutiny Following COVID-19 Pandemic
On June 25, the U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal with prejudice of a qui tam False Claims Act (FCA) suit alleging certain physician compensation arrangements at Trinity Health violated the Anti-Kickback Statute (AKS) and Stark Law.
The relator, a former surgeon at one of Trinity’s hospitals, alleged the following:
- Trinity paid five of its highest-earning physicians above fair market value by compensating them in excess of 90th percentile compensation for their specialties at levels not justified by their personal productivity.
- The high compensation generated practice losses for Trinity absent taking into account the physicians’ downstream referrals to the health system.
- As a result of the physicians’ compensation methodology, they performed unnecessary surgeries to inflate their compensation.
- Trinity opted not to renew the relator’s contract because he complained about these allegedly-unnecessary surgeries.
On May 6, the U.S. District Court for the District of South Carolina entered final judgment dismissing with prejudice a relator’s qui tam False Claims Act (FCA) suit against the defendant wholesale pharmacy. The relator, a former pharmacist who worked for the defendant, alleged that the defendant submitted false claims to government healthcare programs in connection with prescription medications dispensed for use at nursing homes and assisted living facilities. The relator alleged a scheme in which the defendant manually filled “thousands” of prescriptions with less-expensive generic medications while billing for more-expensive alternative medications stocked in its automated dispensing system.
A qui tam complaint containing similar allegations filed against Omnicare Inc. in the U.S. District Court for the District of New Jersey resulted in an $8 million settlement in 2017. In this lawsuit, however, the defendant, represented by Bass, Berry & Sims and others, obtained full dismissal with prejudice of the relator’s FCA and retaliation claims.Continue Reading Qui Tam Complaint Against Pharmacy Dismissed for Lack of Particularity
We recently outlined the significant proposed changes to the Stark Law that the Centers for Medicare & Medicaid Services (CMS) released on October 9. The analysis was written for the American Health Lawyers Association’s (AHLA) Fraud and Abuse Practice Group and co-authored by Dickinson Wright attorney Rose Willis. In the article, the authors summarized the Proposed Rule, including:
- Changes related to a value-based care delivery model – With the ongoing shift from the traditional fee-for-service model to value-based payment and delivery model, the Proposed Rule addresses three new exceptions to the Stark Law focused on the value-based model.
Continue Reading CMS Proposed Rule Adds Exceptions to Stark Law and Provides Additional Guidance and Clarification
The Medicare Advantage program, which allows private insurance companies to offer and administer Medicare benefits, continues to be an area of sharp scrutiny for False Claims Act (FCA) enforcement despite some significant recent setbacks in pursuing FCA liability against Medicare Advantage Plans (MA Plans or Plans). In 2018, several district court decisions raised obstacles to the pursuit of FCA liability against MA Plans, and those decisions have continued to affect FCA enforcement efforts in the first half of 2019. Despite those setbacks, however, the prevalence of government enforcement actions involving Medicare Advantage illustrates that it remains an area of focus for the Department of Justice (DOJ).
The Focus on Medicare Advantage
Unlike traditional fee-for-service Medicare, MA Plans are compensated on a monthly basis through a fixed payment for each member. The amount of the monthly payment – known as a capitation payment – is determined for each payment year through a process called “risk adjustment” and is based on each individual member’s demographic information and data reflecting the member’s medical condition, as documented during the 12 months preceding the payment year. A member’s condition and medical diagnoses must be supported by a valid medical record.Continue Reading Medicare Advantage: Recent Developments in FCA Enforcement
On January 14, 2019, Intermountain Healthcare, Inc. and Intermountain Medical Center (Intermountain) filed a petition for writ of certiorari with the U.S. Supreme Court. Intermountain’s petition comes after the U.S. Court of Appeals for the Tenth Circuit reversed a district court’s grant of Intermountain’s motion to dismiss. In relevant part, the district court concluded that the relator failed to identify any company employees with knowledge of the alleged fraud or when any employees knew about the fraud. The Tenth Circuit reversed, holding that the relator need not allege those facts because they were in the defendant’s exclusive control and that allegations of knowledge need only be pleaded generally.
Intermountain’s petition raises two questions:
- Can a plaintiff avoid Federal Rule of Civil Procedure 9(b)’s pleading requirements by asserting that only the defendant possesses the information needed to meet those requirements?
- Do the False Claims Act’s (FCA) qui tam provisions violate the Appointments Clause of Article II of the U.S. Constitution?
Both questions have previously appeared in petitions for writ of certiorari, but neither question has been addressed by the Supreme Court. See, e.g., Petition for Writ of Certiorari, U.S. ex rel. Joshi v. St. Luke’s Hospital, Inc. (denied Oct. 2, 2006); Petition for Writ of Certiorari, GPM Gas Corp. et al. v. U.S. ex rel. Grynberg (denied Apr. 22, 2002).Continue Reading Supreme Court Asked to Review Pleading Standard and Constitutionality of FCA