The FCA Insider

Insights and updates on False Claims Act Litigation

Due to the infrequency in which the situation arises, the FCA’s “alternate remedy” provision is infrequently invoked or discussed.  In short, this provision states that when the relator presents information about a potential FCA claim for the Government to investigate, the Government has the option to pursue this claim through “any alternate remedy available to the Government.”  The provision goes on to explain that if the Government pursues an “alternate remedy,” the relator has the…
Earlier this year, the Third Circuit Court of Appeals affirmed the decision of the United States District Court for the Eastern District of Pennsylvania in the case of DiFiore v. CSL Behring, LLC.  DiFiore v. CSL Behring, LLC, 879 F.3d 71, 73 (3d Cir. 2018). The opinion set forth the precedent that “but-for causation” is required for an FCA retaliation claim. The litigation involved the claims of a former employee of CSL Behring, Marie Difiore,…
Caris Healthcare, L.P. has entered an agreement with the DOJ in which it has agreed to pay $8.5 million to resolve allegations that it violated the False Claims Act. The qui tam action was filed in the Eastern District of Tennessee by a registered nurse who was formerly an employees of Caris Healthcare. The former employee alleged that Caris Healthcare submitted false claims and retained overpayments in connection with claims for hospice services.  The patients at issue were…
The U.S. Department of Health and Human Services (HHS) has launched its “Regulatory Sprint to Coordinated Care” to accelerate the healthcare system’s transformation to a value-based system rewarding coordinated care. This “regulatory sprint” focuses on identifying regulatory provisions that may act as unnecessary obstacles to coordinated care and issuing guidance to address such obstacles. Specifically, the HHS Office of the Inspector General (OIG) requested industry input on Aug. 27 to “identify ways in which it…
The FCA’s statute of limitations, 31 U.S.C. § 3731(b), has been a source of confusion and disagreement amongst the courts and litigants for years. The disagreement is focused primarily on whether a relator in a non-intervened case can take advantage of the three-year government knowledge/ten-year lookback provision under subsection (b)(2) or whether the relator is limited to the six-year limitation in subsection (b)(1). The majority of courts have held that the relator is bound…
The United States Attorney’s Office for the Middle District of Florida recently settled a False Claims Act case against Healogics, Inc. (“Healogics”) in which it was alleged that Healogics had knowingly billed Medicare for medically unnecessary and unreasonable hyperbaric oxygen therapy (“HBO therapy”). Under the settlement, Healogics agreed to pay $17.5 million, plus an additional $5.01 that is dependent upon certain financial contingencies. The settlement also provides for a whistleblower share of up to $4,276,000.…
The Bipartisan Budget Act of 2018 (the Act) continues to ratchet up penalties for fraud and abuse violations under the Medicare and Medicaid programs. The Act doubles statutory civil fines and quadruples some criminal fines, including for actions brought under the Anti-Kickback Statute (AKS). It also increases maximum jail time. On the other hand, cognizant of the strict liability nature of the Stark Law, the Act codifies certain regulatory protections. On February 9, 2018, Congress…
A January 10 internal memorandum from the director of the fraud section of the DOJ’s civil division commercial litigation branch, which has recently become public, sets out the factors the government should consider in dismissing False Claims Act (FCA) cases in which it has declined to intervene, and may suggest a greater possibility that the DOJ will seek to dismiss such cases.  The memo also provides defense counsel reacting to a government investigation related to…
A former prosecutor for the United States Department of Justice has pled guilty to attempting to sell sealed False Claims cases to the defendants in those cases and to transporting stolen goods across state lines. Jeffrey Wertkin was a DOJ prosecutor who had entered private practice with Akin Gump Strauss Hauer & Feld. Mr. Wertkin was arrested by the FBI in January 2017 in a California hotel, wearing a disguise, while attempting to sell a…
The United States Department of Justice has issued a press release announcing that it recovered more than $3.7 Billion from False Claims Act (FCA) cases during fiscal year 2017 (October 1, 2016 through September 30, 2017).  This recovery marks a decline from the $4.7 Billion that the DOJ recovered in fiscal year 2016, but it is the sixth consecutive year in which the Government’s FCA recoveries have exceeded $3.5 Billion. Once again, the healthcare industry was responsible for the majority of the Government’s FCA…