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

A favorable advisory opinion from the Office of Inspector General for the United States Department of Health and Human Services (OIG) ensures that the government will not impose sanctions concerning the requesting party’s business arrangement. Requesting an advisory opinion may be a good business decision for stakeholders in the healthcare industry.

Continue Reading Download Now – How to Request an Advisory Opinion (and Why)

Having previously examined the falsity, materiality, and scienter elements of the False Claims Act (FCA) in our FCA Fundamentals series, we now turn to what damages can arise from violations of the False Claims Act. The False Claims Act imposes liability for each false claim. If the alleged scheme is broad, pervasive, or spans an extended period, this can result in many individual false claims and significant damages and penalties. It is essential for defendants to scope damages and consider potential exposure throughout a False Claims Act case, which often requires an expert consultant.

Continue Reading False Claims Act Fundamentals: Damages

Join us for a webinar  in which Matt Tormey, EVP Compliance and Risk, Chief Compliance Officer, Ensemble Health Partners, moderates a discussion with two former OIG officials in Bass, Berry & Sims’ healthcare practice group focusing on how, when, and why to submit an advisory opinion request.

Continue Reading Healthcare How-To Instructional Webinar Series: How to Request an Advisory Opinion (and Why)

As previous False Claims Act (FCA) Fundamentals posts have discussed, the FCA, 31 U.S.C. § 3729, et seq., can be triggered by submitting claims tied to violations of certain federal statutes. This post will explain the basics of two such statutes: the Anti-Kickback Statute (AKS) and the Stark Law.

Continue Reading False Claims Act Fundamentals: Anti-Kickback Statute and the Stark Law

In recent years, the federal government has been particularly aggressive in pursuing civil and criminal enforcement against healthcare entities. The way healthcare companies conduct internal investigations so may mean the difference between a manageable resolution and staggering civil or criminal liability.

Continue Reading Key Considerations: How to Conduct an Effective Internal Investigation

As previously discussed as a part of our ongoing FCA Fundamentals series, the False Claims Act (FCA) is the federal government’s most important and most effective tool for fighting fraud. While Congress has substantially expanded the scope of the FCA since its inception during the Civil War, courts have recognized that the FCA was “not designed to reach every kind of fraud practiced on the Government” and is not intended to be a “vehicle for punishing garden-variety breaches of contract or regulatory violations.” Rather, the FCA applies only to false or fraudulent claims or omissions that are “material” to the government. So what is materiality?

Continue Reading False Claims Act Fundamentals:  What is Materiality?