Archive for the ‘False Claims Act Defense’ Category

Posted on March 27, 2012

False Claims Exposure in Credentialing and Peer Review


The Federal Government has reinforced its expanded theory of false claim liability for quality matters by settling allegations against a hospital that a physician’s lack of qualifications to perform certain surgical procedures should be considered a false claim, regardless of the patient’s outcome. As part of the settlement, the hospital defendant paid the Government $840,000 to resolve false claims allegations against it; the lawsuit remains active against the physician defendant. The Government’s position is that hospitals bear false claim exposure for failing to perform adequate credentialing and peer review.

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Posted on March 16, 2012

A Twenty Year Statute of Limitations?


Last month the Centers for Medicare & Medicaid Services (CMS) published proposed rules for reporting of overpayments. These proposed rules, if adopted and strictly interpreted, could effectively create a twenty-year statute of limitations under the False Claims Act.

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Posted on March 13, 2012

February FCA Update


February was an interesting month, with one case showing how OIG advisory opinions can be taken too far, another considering fraud under a corporate integrity agreement, and a court applying burden-shifting for the first time at the appellate level in FCA retaliation cases. Cases reviewed from February are:

  • US ex rel. Boggs v. Bright Smile Family Dentistry, P.L.C. (W.D. Okla.)
  • Harrington v. Aggregate Industries – Northeast Region, Inc. (C.A. 1 Mass)
  • Klein, M.D. v. City of New York (S.D.N.Y.)
  • Klusmeier v. Bell Constructors, Inc. (C.A. 11 Fla.)
  • US ex rel. Matheny v. Medco Health Solutions, Inc. (C.A.11 Fla.)

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Posted on February 6, 2012

False Claims Act Update, January 2012


January, 2012, saw two different examples of the Government using the False Claims Act to bring a gun to a knife fight. In the first case the gun won the day. In the second, it backfired. Both cases were brought in the U.S. Court of Federal Claims and in both the Government was the defendant in a breach of contract action. The Government raised the FCA as a counter-claim in both actions, in one near the end of the trial. In other cases of interest, the D.C. District Court looked at estoppel as a defense to an FCA case, and the Middle District of Florida Court dealt with a reverse false claim case involving brothers trying to hide assets owed as part of a criminal plea agreement. For a more detailed discussion of each case, please read on. (Read more…)

Posted on January 3, 2012

False Claims Act Update, December 2011


What must a successful FCA defendant show to collect attorney’s fees under the Equal Access to Justic Act?

Can an error by the government create an FCA violation by a defendant relying upon the government’s acts?

Does Vermont Agency of Natural Resources v. US ex rel. Stevens apply to FCA retaliation cases?

Can a service have some value and still be the basis for an FCA case under the “worthless services” theory?

Can a pro se Relator bring a case under the FCA?

Federal Courts around the country decided these issues in December, 2011. (Read more…)

Posted on December 5, 2011

False Claims Act Update, November 2011


Can an incompetent, and ultimately dismissed, False Claims Act Complaint bar a future complaint under the FCA’s “first to file rule?” The Court of Appeals in Washington D.C. answered the question for the first time on November 4, 2011.

Can a settlement agreement between an employer and an employee force dismissal of the employee’s whistleblower suit? The Federal District Court in Tampa, Florida, was faced with that question in U.S. ex rel. Scott v. Cancio, and answered the question in the negative.

Does failure to comply with regulatory requirements or CDC advisories that are not conditions of payment constitute a violation of the False Claims Act? Not according to the U.S. District Court in New Jersey.

Can a qui tam whistleblower, who was also an employee, make general allegations, then flesh out her suit during discovery?

Can a whistleblower hide her identity if the government declines intervention?

Can there be a False Claims Act violation without a claim that is false?

All these questions were addressed by Federal Courts this November.

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