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

On August 30, the U.S. Court of Appeals for the D.C. Circuit held, as a matter of first impression, that damages in False Claims Act cases are subject to pro tanto (dollar-for-dollar) settlement offsets in cases involving multiple jointly and severally liable defendants.
Continue Reading D.C. Circuit Holds that False Claims Act Damages Must Be Reduced Dollar-for-Dollar by Other Defendants’ Settlements

On August 26, the U.S. Court of Appeals for the Third Circuit issued an order reaffirming that potential False Claims Act (FCA) whistleblowers are not immune from being fired for workplace misconduct, especially where that misconduct involves “oinking” at co-workers.
Continue Reading Third Circuit Holds that Whistleblower Can Still Be Fired for Misconduct

On August 25, the U.S. Court of Appeals for the Ninth Circuit issued an opinion in which it held that ex parte patent prosecutions by the Patent and Trademark Office (PTO) qualify as “other Federal . . . hearing[s]” under prong (ii) of the False Claims Act’s Public Disclosure Bar. In so ruling, the Ninth Circuit affirmed that the Public Disclosure Bar should not be read in a restrictive manner but should be given a broad construction.
Continue Reading Ninth Circuit Affirms Broad Scope of False Claims Act’s Public Disclosure Bar

In 2010, Congress amended the Anti-Kickback Statute (AKS) to provide that claims “resulting from” an AKS violation are “false or fraudulent” for False Claims Act (FCA) purposes. 42 U.S.C. § 1320a-7b(g). For over a decade, courts have wrestled with the significance of the “resulting from” requirement and the degree of causation it warrants for an FCA violation premised on an illegal kickback, as we have covered in prior posts.
Continue Reading Eighth Circuit Tightens Causation Requirement for FCA Claims Involving Anti-Kickback Statute Violations, Creating Circuit Split

The Paycheck Protection Program (PPP) was intended to provide a fast influx of assistance to small businesses during the economic shock created by the COVID-19 pandemic. The speed with which loans were distributed to businesses nationwide was striking, and so was the speed with which the Department of Justice (DOJ) began prosecuting those abusing the program. Reports of corporations and individuals seeking to take advantage of the PPP prompted a vigorous law enforcement response that has broadened its scope in recent months. As we highlighted last year, the DOJ has taken aggressive action to pursue those who engaged in misconduct involving the PPP and other CARES Act stimulus programs.
Continue Reading PPP Enforcement Actions Gather Steam

On July 25, the U.S. Court of Appeals for the Second Circuit affirmed the U.S. District Court for the Southern District of New York (SDNY) decision granting summary judgment in favor of the Department of Health Human Services (HHS) in Pfizer’s landmark challenge against the Office of Inspector General’s (OIG) interpretation of the federal Anti-Kickback Statute (AKS).
Continue Reading Second Circuit Agrees that the Anti-Kickback Statute Does Not Contain a “Corruption” Element

I commented on the recent ruling by the Second Circuit Court of Appeals, which upheld the district court’s rejection of Pfizer’s argument that liability under the Anti-Kickback Statute requires an element of “corrupt” intent.
Continue Reading Court Decision Upholding OIG’s Rejection of Pharmaceutical Company’s Drug Co-Pay Assistance Program

Last week, we posted about the U.S. Supreme Court’s request for input from the Solicitor General on how False Claim Act complaints should be reviewed by courts.

Currently, the plaintiff-relators in two cases—U.S. ex rel. Owsley v. Fazzi Associates, Inc. and Johnson v. Bethany Hospice & Palliative Care, LLC—have submitted petitions for certiorari asking the Supreme Court to resolve what they see as a “long-standing circuit split” on the application of Rule 9(b) in False Claims Act cases.

In the Bethany Hospice case, which was the first to submit a petition, the plaintiff-relator argued that her complaint was dismissed under the Eleventh Circuit’s “rigid” application of Rule 9(b), which in most cases requires the specific details of at least one false claim that was actually submitted to the government, but that her complaint would have easily survived dismissal in many other circuits that only require “reliable indicia” that such claims were submitted.Continue Reading United States Says No Supreme Court Review Needed in False Claims Act Cases