Articles and Blogs

Appellate Court Cases Three appellate-level FCA cases were reported in January and February 2013. Only one, U.S. ex rel. Nathan v. Takeda Pharmaceuticals North America, Inc., was selected for publication. All three cases addressed Rule 9(b)’s requirement that allegations of fraud be lead “with particularity.” The cases, read together, highlight the differences among Circuits... READ MORE

Can the False Claims Act be used by the government or whistleblowers in quality of care cases? The Department of Justice seems to think so, based in significant part on the retention of overpayments amendments to the FCA by FERA and the PPACA. For more please read Retention of Overpayments under FERA and the... READ MORE

Federal regulations are an enormous morass of complex, confusing, and often contradictory rules. The 2009 Code of Federal Regulations was 163,333 pages in 226 individual books.  The 2010 Federal Register, which contains new regulations proposed rules, and presidential papers, contained an additional 81,305 pages.  Intended as a roadmap, providing guideposts and requirements for dealing... READ MORE

This Thursday, June 28, 2012, the United States Supreme Court will decide the fate of the Patient Protection and Affordable Care Act, aka “Obamacare.” In so doing, it may also make significant changes in one of the newest and most complicated amendments the False Claims Act, with results that are almost impossible to predict.... READ MORE

Pleading a False Claims Act case can be a tricky exercise, and in defending an FCA case, it is important to know just what the rules are for a whistleblower, and how they can fail to meet them. One of the most common mistakes made by whistleblowers is failing to “plead fraud with particularity,” a requirement... READ MORE

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... READ MORE

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. READ MORE

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... READ MORE

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... READ MORE

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... READ MORE