On February 3, the U.S. Court of Appeals for the Fourth Circuit reversed a district court’s grant of a motion to dismiss, holding in relevant part that:Continue Reading Fourth Circuit Holds that Violation of CIA Can Support Reverse False Claims and Adopts Relaxed Rule 9(b) Presentment Requirement
Rule 9(b)
Supreme Court Review of Key FCA Issues
By John Eason on
For the February 2023 issue of the American Bar Association’s (ABA) Health Lawyer, the flagship publication of the ABA Health Law Section, I authored an article entitled “Recent False Claims Act Developments at the Supreme Court.”Continue Reading Supreme Court Review of Key FCA Issues
Third Time is Not the Charm – Supreme Court Denies Cert. on Rule 9(b) Split Again
By Taylor Sample on
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
United States Says No Supreme Court Review Needed in False Claims Act Cases
By Taylor Sample on
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
Supreme Court Taking Hard Look at Rule 9(b) Standard
By Taylor Sample on
Posted in FCA Deep Dive, Rule 9(b)
Earlier this week, the U.S. Supreme Court solicited input from the Department of Justice (DOJ) regarding the scrutiny with which courts should view False Claims Act complaints—particularly those filed by private plaintiff-relators.
Continue Reading Supreme Court Taking Hard Look at Rule 9(b) Standard
False Claims Act Decisions to Know from Q1 2022
By Hannah Webber on
There have been several significant rulings on various provisions of the False Claims Act (FCA) in the first quarter of this year, which we highlight in this post.
Continue Reading False Claims Act Decisions to Know from Q1 2022
False Claims Act Fundamentals: What Is a Relator?
By Taylor Sample on
A relator is a private person or entity who files a False Claims Act (FCA) lawsuit on behalf of the United States in exchange for receiving a portion any recovery from the defendant. The FCA was enacted in 1863 in response to defense contractors defrauding the Union Army during the Civil War. But, it wasn’t until 1986, when Congress supercharged the FCA by incentivizing more private whistleblowers to file lawsuits on behalf of the government, that the FCA became the Department of Justice’s (DOJ) primary enforcement tool for combatting fraud against the government.
Continue Reading False Claims Act Fundamentals: What Is a Relator?
Key False Claims Act Cases in 2020
By Matt Curley & Brian Roark on
As 2020 draws to a close, we take a look back at a number of the most significant False Claims Act (FCA) cases of the prior 12 months. Although no blockbuster cases emerged, such as the Supreme Court’s 2016 decision in Escobar, there were a number of noteworthy cases that will have lasting impact on future FCA litigation. We discuss those cases briefly below. We expect to cover these cases and much more in our Healthcare Fraud and Abuse Review, which we will release in early 2021.
Materiality
U.S. ex rel. Janssen v. Lawrence Memorial Hospital, 949 F.3d 533 (10th Cir. 2020)
Background. In 2016, the Supreme Court held in Escobar that whether a defendant can be held liable under the FCA for violating a statute, rule, regulation, or contract provision turns, in part, on the elements of materiality and scienter, which the Court said are “rigorous” and “demanding.” Post-Escobar, courts have grappled with specific applications of these standards, with some courts appearing to apply them less “rigorously” than others.
Allegations. In U.S. ex rel. Janssen v. Lawrence Memorial Hospital, the relator primarily alleged that the defendant hospital falsified patient arrival times associated with certain CMS pay-for-reporting and pay-for-performance programs. The relator introduced proof that the hospital had knowingly falsified arrival times in patient records by recording actual arrival times on patient triage sheets but then entering later times in the medical record or delaying patient registration until after the administration of some tests.Continue Reading Key False Claims Act Cases in 2020
Eighth Circuit Affirms Dismissal of Kickback Case
By Taylor Chenery, Brian Roark, Molly Ruberg & Taylor Sample on
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.
Continue Reading Eighth Circuit Affirms Dismissal of Kickback Case
Qui Tam Complaint Against Pharmacy Dismissed for Lack of Particularity
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