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Second Session in Health Care Fraud and Abuse Seminar Focuses on False Claims Act

At BU yesterday, the Health Care Fraud and Abuse did its first deep dive into the False Claims Act, the government’s primary weapon in this field and an extraordinarily versatile tool.  The statute allows federal prosecutors to seek treble damages, plus penalties of $11,000 per false claim, plus possible exclusion and debarment from the government health insurance programs.

 

 

For reading, the class took on the statute itself, as well as Department of Justice statistical records showing how much money has been recovered over the years via the False Claims Act (over $40 billion).  Moreover, the trend is clear that increasingly each year, the government relies on whistleblower suits for its investigative leads, as these suits now account for a greater amount of recovery that suits initiated by the government itself.

 

 

Several key points were stressed in the review of the statute:

 

 

How the liability provisions include not only the submission of false claims but causing them to be committed, conspiring to have them be submitted, and also the retention of overpayments.

 

How the intent standard of the law does not require “specific intent” but can be satisfied with a lesser showing of intent, like “reckless disregard” for the law.

 

How certain hurdles are embedded on the statute that can make success in these cases difficult to predict, like:  the first to file requirement, the public disclosure bar, the Rule 9(b) specificity pleading standards, and 4) the “government knowledge” and “materiality” issues.  And

 

How the federal FCA and 30 state FCAs inter-relate and how law enforcement coordinates on these matters.

 

 

Of course, we covered as well the role of whistleblowers and their counsel in identifying these cases, bringing them to the government, and helping the government investigate and prosecute them.

 

 

The students asked excellent questions throughout.

 

 

Next week:  The FCA in action:  theories of liability, First Amendment defenses to “off-label” cases, and the new materiality standard of Escobar.

Whistleblower Law Collaborative & Our Client Help the Government Recover $13.5 Million For Healthcare Fraud

Helping whistleblowers report and prosecute fraud can be difficult and exhausting work for both the relators and their attorneys. When doing this work it’s important to celebrate successes. Along these lines, we are thrilled to announce that the United States settled a False Claims Act case brought by our client  against three companies, Medi-Lynx Cardiac Monitoring, LLC, AMI Monitoring, Inc., Spectocor, LLC, and individual defendants who had concocted a scheme to cause unwitting physicians to order their most lucrative services regardless of medical necessity or reasonableness.

 

As part of their service, defendants utilized an online enrollment portal that steered physicians to select the highest reimbursing monitoring service, even though less expensive monitoring services were often medically appropriate. Through this scheme, defendants submitted, and caused the submission of, false claims to Medicare for unnecessary and unreasonable telemetry services. Under the terms of the settlement, defendants have agreed to pay some $13.5 million to resolve these claims.

 

Our client, Eben Steele, an employee of AMI/Spectocor, had worked in the industry for many years and believes that healthcare companies should serve their patients’ needs, not line their own pockets. He was “offended by this underhanded scheme. Not only was it overriding the doctor’s judgment about what the patient needed, but it was lining the Defendants’ pockets at the expense of the taxpayer.”  Mr. Steele approached us in late 2013 to see if, together, we could do something to stop this fraud.   After investigating his allegations, compiling his evidence,  and conducting research, we drafted and ultimately filed his Complaint under seal in March 2014 and then served the Complaint along with a statement detailing his evidence on the government.  We then worked with the government over the course of the next three plus years until the settlement.

 

One of the most important factors in ensuring success for an FCA complaint is filing it in a district where the government prosecutors have the expertise and enthusiasm to ensure success. We filed Mr.  Steele’s complaint in the district of New Jersey, permitting us to work with the excellent office there. We simply cannot overstate the outstanding work of AUSA Bernard Cooney, who prosecuted this case from the beginning with the assistance of AUSA Andrew Caffrey, along with support provided by investigators in the Office’s Health Care & Government Fraud Unit and at the Office of Inspector General of the Department of Health and Human Services.”

 

Whistleblowers like Mr. Steele are vitally important in the fight against government fraud. Under the FCA, a private citizen-relator who suspects or knows of fraud against the government can act as a whistleblower and file a sealed complaint on behalf of the government. If the case is successful, as it was here, the relator is entitled to a share of the government’s recovery. In this case, after several years of hard work by Mr. Steele, his attorneys, and government prosecutors, our client will receive some $2.43 million for his part in stopping an ongoing fraud against the government was stopped, and helping ensure that government victims were compensated.

 

We offer Mr. Steele our congratulations and deep gratitude for his efforts on behalf of the government.