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Homeostasis: Health Care Law Blog

Posts by Jonathan S. Feld


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Showing 8 posts by Jonathan S. Feld.

Eleventh Circuit Rejects Expert Challenge to Clinical Judgment Decision in Hospice False Claims Act Litigation

On September 9, 2019, the U.S. Court of Appeals for the Eleventh Circuit issued an important decision for health care providers, especially those in the hospice industry. In U.S. v. AseraCare, Inc., No.16-13004, Slip. Op. (11th Cir. September 9, 2019), the Court held that a “reasonable disagreement between medical experts” about prognosis for a terminally ill patient, without more, cannot establish falsity. Slip. Op. at 3. The case began in 2008 as a qui tam action when former AseraCare company employees filed a False Claims Act lawsuit alleging that AseraCare submitted documents that falsely certified some Medicare patients were “terminally ill” and eligible for hospice care. The Government intervened. While the Eleventh Circuit remanded to the District Court to review its ruling in favor of AseraCare, the Eleventh Circuit upheld the lower court’s ruling that differing medical opinions do not qualify as “objective” evidence of falsity required by the False Claims Act.

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New Development: Government Authority to Dismiss Qui Tam Actions

The False Claims Act grants the government the authority to dismiss qui tam actions over the objections of the relator if “the court has provided the person with an opportunity for a hearing on the motion.”  31 USCS § 3730. However, what constitutes a “hearing” under the Act and the extent of the government’s authority to unilaterally dismiss qui tam actions has been the subject of dispute amongst the Courts of Appeals. Read More ›

Supreme Court Exposes FCA Defendants To Decade-Old Relator Suits

When the Supreme Court accepted the cert petition to resolve a Circuit split regarding the False Claims Act’s statute of limitations when the government does not intervene, it created the potential that the Court would extend the limitations period for private relators’ FCA actions. That is exactly what happened. The Supreme Court unanimously ruled that a relator can bring suit within three years after a government official knows, or should know, about a potential FCA violation—up to 10 years after the underlying event—and the relator does not count as a government official. Cochise Consultancy, Inc. v. United States ex rel. Hunt, No. 18-315 (U.S. May 13, 2019). FCA defendants may, therefore, face more qui tam suits reaching further back into their memories and records. Read More ›

A Longer Statute of Limitations for False Claims Act Qui Tam Suits?

A Supreme Court case to be decided this term will determine whether to extend the statute of limitations for private relators’ FCA actions in which the government does not intervene. United States ex rel. Hunt v. Cochise Consultancy, 2018 U.S. LEXIS 6778, at *1 (Nov. 16, 2018). The Department of Justice wants relators to have the same 10 year statute of limitations as the government has in cases where the government does intervene. Read More ›

Back to the Old Regime: The DOJ’s Criminal Division’s Newest Compliance Approach

On October 12, 2018, Assistant Attorney General Brian A. Benczkowski spoke at the NYU School of Law where he announced new guidelines regarding the procedures governing corporate compliance and monitorships.[1] While most of the attention has been on the new criteria for selecting corporate monitors, AAG Benczkowski also announced that the DOJ will not be hiring new corporate compliance counsel within the Criminal Division, a break from the practices of the previous administration. Read More ›

Reading the Tea Leaves: Understanding OIG Priorities

The Office of Inspector General of the U.S. Department of Health and Human Services (“OIG”) issues work plans (“Work Plan”) that addresses priority areas and emerging issues. For many years, the OIG published its Work Plan every two years with intermediate updates published once or twice each calendar year. Beginning on June 15, 2017, however, the OIG changed its practice and publishes the Work Plan on a monthly basis. These monthly updates are published through the OIG’s Work Plan website. Read More ›

Stay One Step Ahead of the Regulator: Data Analytics as Part of a Robust Compliance Program

Health care fraud and abuse is a significant contributor to the cost of health care in the United States. For the fiscal year that ended September 30, 2017, the United States Department of Justice (the “DOJ”) reported that it had recovered $3.7 billion under the False Claims Act (“FCA”), of which $2.4 billion related to the health care industry. Fiscal Year 2017 was the eighth consecutive year that civil FCA settlements and judgments exceeded $2 billion. Read More ›

Memos May Signal Change to DOJ Enforcement of FCA

The United States Department of Justice (“DOJ”) recently issued two separate memos that may signal the DOJ is taking a more restrictive False Claims Act (“FCA”) enforcement position.

The first memo, written by Michael Granston, Director of the DOJ’s Civil Fraud Division, and dated January 10, 2018, discusses the DOJ’s authority to seek dismissal of a “meritless” qui tam relator case under 31 U.S.C. § 3730 (the “Granston Memo”). The DOJ historically has been reticent to use its authority under § 3730. The Granston Memo argues that, to preserve the DOJ’s limited resources and avoid adverse decisions that could negatively impact the DOJ’s own enforcement priorities, DOJ attorneys should consider the seven factors listed in the memo in evaluating whether to seek dismissal of a qui tam case. Read More ›