Articles and Blogs

The Fourth Circuit recently held that providers may not defend a False Claims Act (“FCA”) lawsuit by arguing that eligibility requirements violate the Medicaid Act. Rather, liability under the FCA may still be established if any misrepresentations made by a provider influenced decision-makers and resulted in the submission of false claims to the government.... READ MORE

On June 1, 2023, the U.S. Supreme Court in U.S. ex rel. Schutte v. SuperValu, Inc. held that the mental state required by the False Claims Act (“FCA”) refers to the defendant’s actual knowledge and subjective beliefs about the truth of claims for payment submitted to federal payors. This decision overturns the growing body of... READ MORE

The Seventh Circuit recently held in Astellas US Holding, Inc. v. Federal Insurance Company, No. 21-3075 WL 3221737 (7th Cir. 2023) (“Astellas”) that insurance policies may need to cover settlements designed to compensate a party and make them whole, including settlements paid the United States government, and the cost of defense in False Claims... READ MORE

In August 2022, in this post, we alerted Michigan employers defending wrongful discharge claims in violation of public policy that internal, as well as external complaints, will suffice to support such claims. In facts stemming from the same case (after remand from the Michigan Supreme Court), Michigan employers should also recognize that wrongful discharge... READ MORE

On December 27, 2022, the Centers for Medicare & Medicaid Services (“CMS”) published a proposed rule that could potentially have a significant impact on enrollees’ obligations under the “60-day” overpayment rule. The original overpayment rule, which was signed into law in 2014 with the Affordable Care Act and expanded to Medicare Parts A and... READ MORE

The Second Circuit Court of Appeals emphasized, in affirming a district court’s ruling on a motion to dismiss, that a contract merely incorporating a statutory or regulatory payment provision by reference, without more, does not make all terms of the statutory and regulatory scheme material, express conditions of payment in False Claims Act cases.... READ MORE

Recently, Simon et al, v. Healthsouth of Sarasota Limited Partnership, et al, the Eleventh Circuit held that for a plaintiff to qualify as engaging in “protected activity,” the plaintiff must demonstrate that they had both a subjectively reasonable belief of fraud and an objectively reasonable belief of fraud. Background The plaintiff in this action... READ MORE

The Eleventh Circuit Court of Appeals recently affirmed that a qui tam relator’s original complaint, rather than any amended complaints subsequently filed in the action, is the “proper point of reference” for analysis under the False Claims Act’s (“FCA’s”) first-to-file rule. Cho on behalf of States v. Surgery Partners, Inc., No. 20-14109 WL 982126... READ MORE

Recently, the Seventh Circuit, in Proctor v. Safeway, Inc., clarified what it means to act with reckless disregard in respect to claims brought under the False Claims Act (“FCA”). ­__ F.4th ­__, No. 3:11-CV-3406, 2022 WL 1012256, (7th Cir. 2022). In doing so, the court stated that authoritative guidance must be truly authoritative in... READ MORE

A federal district court affirmed this guidance in a careful analysis of the attorney-client privilege and its application to protect separate legal entities within a larger corporate structure. Affirming that member entities are not treated as “one client,” the Court in U.S. ex rel Behnke v. CVS Caremark Corp., et al. denied a whistleblower’s... READ MORE