Government Program Fraud, False Claims Act & Qui Tam Litigation Playbook
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July 15, 2024
|3 min read
The Supreme Court’s Recent Rulings—A Boon for Government Contractors?
The Supreme Court of the United States’ recent decisions in Loper Bright Enterprises et al. v. Raimondo, 603 U.S. (2024) and Corner Post v. Board of Governors, Federal Reserve System, 603 U.S. __ (2024), may provide federal contractors with new arguments and opportunities to challenge agency regulations in litigation and bid protests.
April 17, 2024
|9 min read
E.D. Virginia Endorses Broad Interpretation of Anti-Kickback Statute
The U.S. District Court for the Eastern District of Virginia is the latest court to weigh in on the continuing debate surrounding the scope of the Federal Anti-Kickback Statute (AKS) as it applies to patient assistance programs (PAPs). In a lengthy opinion issued in January 2024, the court endorsed the broad interpretation advanced by the government, expressing little sympathy for the legal or policy arguments advanced by the plaintiffs, a coalition of pharmaceutical manufacturers. The coalition has indicated it will appeal the case to the Fourth Circuit.
April 8, 2024
|13 min read
2023 DOJ FCA Enforcement: Expectations for Future
On Feb. 22, 2024, the US Department of Justice (DOJ) released its annual False Claims Act (FCA) recovery statistics and announced that it obtained more than $2.68 billion in settlements and judgments in fiscal year (FY) 2023 from civil cases involving fraud and false claims against the government, a 21% increase over the prior year's recoveries. As such, FY 2023 was another strong year for FCA enforcement and marked the fifteenth straight year where recoveries exceeded $2 billion. This past fiscal year also saw records set in several areas, including the highest number of settlements and judgments in DOJ history and a record number of civil investigative demands (CIDs) issued in connection with investigating FCA claims, revealing highly robust FCA investigative activity in 2023, which could signal even greater FCA judgments and recoveries in future years.
August 15, 2023
|2 min read
The U.S. Department of Justice (DOJ) has vowed to hold accountable the individuals and entities who “knowingly and improperly sought PPP loans or forgiveness of those loans.” In furtherance of this promise, the DOJ has reached settlement with two companies and prosecuted two individuals, all of whom were suspected of fraudulently seeking relief from the Paycheck Protection Program (PPP).
August 14, 2023
|7 min read
The U.S. Department of Justice (DOJ) continued its health care fraud enforcement activity in June 2023, announcing two convictions and a national enforcement action involving charges against 78 individuals and over $2.5 billion in alleged fraud. This enforcement activity relates to efforts to defraud Medicare by billing for supplies that were not medically necessary, compounding drugs to maximize reimbursement from TRICARE, and other allegations of alleged health care fraud, telemedicine fraud, and opioid abuse-related schemes.
August 14, 2023
|9 min read
June 2023 FCA Settlement Wrap-Up: DOJ Continues to Crack Down on Health Care Fraud
The U.S. Department of Justice (“DOJ”) announced several settlements related to False Claims Act (“FCA”) allegations this June. The settlements involved various types of health care entities, which shows the DOJ’s continued interest in pursuing FCA allegations across the health care industry.
June 15, 2023
|9 min read
Understanding SuperValu: Scienter in FCA Claims Hinges on Subjective Beliefs
On June 1, 2023, the Supreme Court of the United States issued its decision in the most-watched False Claims Act (FCA) case of the year. In United States ex rel. Schutte v. SuperValu Inc. (consolidated with United States ex rel. Proctor v. Safeway, Inc.),[1] a unanimous Court held that the question of scienter under the FCA turns on a person’s subjective beliefs, not what an objectively reasonable person may have believed—rejecting a standard that had been set by the Seventh Circuit and embraced by the Third, Eighth, Ninth and D.C. Circuits.
April 27, 2023
|4 min read
The Sixth Circuit Court of Appeals recently issued a key decision interpreting narrowly an important element of the Anti-Kickback Statute (AKS) and the interplay between the AKS and the False Claims Act (FCA). The court’s decision perpetuates a circuit split, now two to one, on whether the but-for causation must be proven to maintain an FCA action on an AKS-violation theory. While not ripe for Supreme Court review yet, the decision signals that this critical and controversial issue may ultimately need clarification from the high court.
March 28, 2023
|14 min read
On February 7, 2023, the U.S. Department of Justice (“DOJ”) released its annual False Claims Act (“FCA”) recovery statistics and announced that it had obtained more than $2.2 billion in settlements and judgments in fiscal year 2022 from civil cases involving fraud and false claims against the government.[1] The significant decrease in 2022 recoveries stands in stark contrast with DOJ’s near-record breaking fiscal year 2021 where it obtained more than $5.6 billion in settlements and judgments. That said, fiscal year 2022 marked the fourteenth straight year where recoveries exceeded $2 billion.
February 28, 2023
|4 min read
On January 9, 2023, the U.S. Department of Justice, the U.S. Attorney’s Office for the Eastern District of California, and the Small Business Administration’s Office of General Counsel and Office of Inspector General announced a settlement that resolves alleged violations of the False Claims Act (FCA) and the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) related to improper inflation of employee head count numbers on the companies’ Paycheck Protection Program (PPP) loan applications.
February 27, 2023
|6 min read
NortonLifeLock Found Liable After FCA Trial, But Government Leaves Damages Money On The Table
The decision in United States ex rel. Morsell v. NortonLifeLock Inc., No. 1:12-cv-00800 (D.D.C. Jan. 19, 2023), is a striking reminder of the strategic importance of pushing plaintiffs to prove FCA damages with reasonable certainty.
November 14, 2022
|6 min read
On November 1, 2022, the Department of Justice (“DOJ”) announced that Florida-based electronic health record (“EHR”) vendor, Modernizing Medicine (“ModMed”), agreed to a $45 million settlement with the United States to resolve civil claims that it violated the False Claims Act (“FCA”) and Anti-Kickback Statute (“AKS”) by accepting and providing unlawful remuneration in exchange for referrals, causing users to submit tainted claims for federal incentive payments.
August 10, 2022
|5 min read
On July 20, 2022, the Office of Inspector General (“OIG”) for the Department of Health and Human Services issued a Special Fraud Alert (the “Alert”) on potential fraud schemes involving companies that provide telehealth, telemedicine, or telemarketing services (referred to collectively in the Alert as “Telemedicine Companies”).[1]
August 8, 2022
|6 min read
On July 26, 2022, the United States Court of Appeals for the Eighth Circuit issued a decision that creates a new circuit split on the question of what evidence is needed to prove that a violation of the Anti-Kickback Statute (AKS) renders a claim false or fraudulent under the False Claims Act (FCA).
June 15, 2022
|4 min read
Historically, if the Securities and Exchange Commission (“SEC”) wanted to obtain monetary relief against a defendant for violations of the federal securities laws, it needed to sue that defendant in federal court. However, when Congress passed the Sarbanes-Oxley Act in 2002, it gave the SEC the option of seeking such relief from its own administrative law judges, instead.
May 9, 2022
|5 min read
On April 6, 2022, the Department of Justice (“DOJ”) announced that Florida-based BayCare Health Systems Inc. and four affiliated hospitals (collectively, “BayCare”) entered into a $20 million settlement with the United States to resolve civil claims that BayCare had violated the False Claims Act (“FCA”) by engaging in Medicare fraud.
November 2, 2021
|4 min read
On October 6, 2021, Deputy Attorney General Lisa O. Monaco announced a new Civil Cyber-Fraud Initiative, by which the Department of Justice (DOJ) will utilize the False Claims Act (FCA) as a tool to enforce cybersecurity standards required of federal contractors and grant recipients.
October 21, 2021
|5 min read
FAR Council Proposal for Climate-Related Disclosures and the False Claims Act
Last week, the federal government took another step toward considering the greenhouse gas emissions of suppliers when deciding major Federal agency procurements. It proposed amendments to the Federal Acquisition Regulation (“FAR”) that would require consideration of the social cost of carbon, and commitments to reduce or mitigate greenhouse gas emissions, in connection with awarding federal contracts.
October 5, 2021
|6 min read
On September 8, 2021, the U.S. Department of Justice (DOJ) announced that it reached a $17 million settlement with BAYADA, a Moorestown, New Jersey-based home-health company, and certain of its affiliates (collectively referred to as BAYADA) for alleged violations of the False Claims Act (FCA) and Anti-Kickback Statute (AKS). The settlement resolves claims arising out of a qui tam complaint filed against BAYADA by the company’s former director of strategic growth alleging that the company billed federal payors for services tainted by alleged kickbacks.
September 21, 2021
|6 min read
On August 30, 2021, the U.S. Department of Justice (DOJ) announced that Sutter Health and several affiliates, including the Palo Alto Medical Foundation, agreed to pay $90 million to resolve claims that they violated the False Claims Act (FCA) by knowingly submitting inaccurate and unsupported information about the health status of individuals enrolled in Medicare Advantage (or Medicare “Part C”) plans in order to increase payments to Medicare Advantage Organizations with which they contracted, and ultimately themselves.