This year’s Symposium will be available either in-person or online on Wednesday, March 13, starting at 815 am EDT.  It offers 7.5 CLE hours, including 1 Ethics hour and 4 Trial Practice hours. Cost is $279.  

You can register (and see the full Agenda) here: atlantabar.org/….   Topics include: 

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The Department of Justice announced the settlement on August 17, 2017, of two qui tam cases pending in the District of Massachusetts, United States, et al. ex rel. sanofi-aventis US LLC v. Mylan Inc., et al., and our case, United States, et al. ex rel. Ven-A-Care of the Florida Keys, Inc. Mylan Inc., et al..

These cases illustrate the importance of the False Claims Act to uncover and stop fraud and false claims in health care and other industries, which harm taxpayers by stealing taxpayer dollars needed to provide medical care and other services.

The post $465 Million Settlement in Our Client’s Qui Tam Whistleblower Case Over Pharmaceutical Manufacturer’s Underpaying Medicaid Rebates for New EpiPen Products appeared first on Whistleblower Lawyer Blog.

Today the Department of Justice announced the largest settlement in its history with a skilled nursing facility chain–a qui tam whistleblower case under the False Claims Act that our firm and our co-counsel Mark Simpson worked side-by-side with DOJ to prepare for trial.

We applaud the exceptional work of DOJ’s attorneys, as well the outstanding attorneys of the U.S. Attorney’s Office for the Eastern District of Tennessee.  Below is our press release on today’s settlement:

$145 Million Settlement in Groundbreaking Health Care Fraud “Whistleblower” Case by Atlanta’s Finch McCranie LLP and U.S. Department of Justice

The post $145 Million Settlement: Largest in History by Department of Justice and Finch McCranie, LLP in Any Skilled Nursing Facility Healthcare Fraud Case appeared first on Whistleblower Lawyer Blog.

If DOJ means what it says, this policy change is profound. It should hit corporate officers whose business models are based on fraud and false claims. It should also snare high level executives who turn a blind eye to wrongdoing, and who typically get away with it.

Corporations can act only through the humans who run them. Sometimes those humans steer the business to corrupt methods.

Until yesterday’s change in DOJ policy, however, the few corporations brought to heel by DOJ for crimes, fraud, or false claims absorbed the consequences, while the individuals who directed the wrongdoing usually escaped responsibility. Those individuals were free to continue their corrupt practices at the same firm or a different one.

New U.S. Deputy Attorney General Sally Yates plans to change that result. As a federal prosecutor in Atlanta, Yates was not afraid of pursuing big cases against individuals and their companies, as I learned from representing clients in some of those cases.

Yesterday Yates issued a Memorandum titled, “Individual Accountability for Corporate Wrongdoing.” It is far-reaching, if implemented. Yates announced “six key steps to strengthen [DOJ’s] pursuit of individual corporate wrongdoing, some of which reflect policy shifts and each of which is described in greater detail below:

(1) in order to qualify for any cooperation credit, corporations must provide to the Department all relevant facts relating to the individuals responsible for the misconduct;

(2) criminal and civil corporate investigations should focus on individuals from the inception of the investigation;

(3) criminal and civil attorneys handling corporate investigations should be in routine communication with one another;

( 4) absent extraordinary circumstances or approved departmental policy, the Department will not release culpable individuals from civil or criminal liability when resolving a matter with a corporation;

(5) Department attorneys should not resolve matters with a corporation without a clear plan to resolve related individual cases, and should memorialize any declinations as to individuals in such cases; and

(6) civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual’s ability to pay.”

The new policy expressly applies to cases under the False Claims Act–the nation’s major whistleblower law and chief civil enforcement weapon to fight fraud that targets taxpayer funds. Whistleblowers are the source of most False Claims Act cases by filing suit under the “qui tam” provisions of the law.

In our qui tam whistleblower cases, we name as defendants both individuals and their businesses when we have evidence of the individuals’ involvement and knowledge of the fraud. With smaller corporate defendants, those individuals are sometimes obvious. Joining the individuals as defendants can prevent the wrongdoers from escaping liability simply by shuttering the business.

But with large companies, it is often difficult to identify at the outset all or even some of those culpable individuals. The case begins against the corporation only–and typically ends with a settlement by only the company. Until this policy change, the guilty individuals usually could count on being released from liability with the company’s settlement. And while the government technically could seek to exclude or debar the blameworthy individuals from federal programs, that has been a rare occurrence.

Now, government lawyers are tasked with focusing on individuals’ liability from the start. Yates’s memo directs that “[c]ivil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual’s ability to pay.” As the case progresses through discovery, the government learns who those guilty individuals are, and properly can add them as defendants.

Yates correctly observes that deterring fraud is important, and that holding individual wrongdoers accountable aids deterrence:

“Although in the short term certain cases against individuals may not provide as robust a monetary return on the Department’s investment, pursuing individual actions in civil corporate matters will result in significant long-term deterrence. Only by seeking to hold individuals accountable in view of all of the factors above can the Department ensure that it is doing everything in its power to minimize corporate fraud, and, over the course of time, minimize losses to the public fisc through fraud.”

Of course, Yates is directing a huge organization of lawyers who are used to doing cases the old way. It remains to be seen how quickly they will implement the new policy.

DOJ’s new policy is a step in right direction for deterring wrongdoing. Corporations violate the law only when individuals direct them to do so. It is past time to hold those individuals accountable.

The post Justice Department’s New Focus on Individuals’ Liability in “Yates Memo” Should Impact Qui Tam Whistleblower Cases under False Claims Act appeared first on Whistleblower Lawyer Blog.

This year, I was honored again to be invited to participate as part of the False Claims Act panel with Rick Shackelford, an accomplished defense lawyer at King & Spalding, LLP; Marlan Wilbanks, my colleague; and our excellent moderator, Jim Breen.

One of the major developments we focused on was the increasing number of cases in which the Justice Department relies on private attorneys representing whistleblowers (“relators”) to litigate cases, since the government has limited resources.

The post Health Care Fraud Institute Discusses False Claims Act Developments appeared first on Whistleblower Lawyer Blog.

Late this year, DOJ will announce that its fraud recoveries tripled from $3 million in FY 2011 to more than $9 million in FY 2012. This trend of increasingly large recoveries of stolen taxpayer funds proves once again the effectiveness of laws like the False Claims Act, which incentivize whistleblowers to expose fraud through its qui tam provisions.

Although health care cases account for the vast majority of FCA recoveries, growing areas include banking, mortgage, and pension fraud cases involving fraudulently obtained taxpayer dollars, as my colleagues at Taxpayers Against Fraud point out. States are also using their own false claims laws to recover stolen taxpayer funds.

In qui tam cases, private citizen whistleblowers (known as “relators”) file suit on the government’s behalf to expose fraud against taxpayer funds. The whistleblowers can receive 15-25% of the government’s recovery of stolen funds if the government prosecutes the case, and 25-30% if the government leaves it to the whistleblower to pursue the recovery.

Consider the history of False Claims Act recoveries that have totalled more than $39 billion since 1986, when Congress authorized meaningful rewards to whistleblowers:

According to DOJ statistics, in 1987 total FCA recoveries were just $86 million (with zero recovered in qui tam cases), but then began a steady climb upward. By 1994, fraud recoveries broke $1 billion for the first time, with $380 million attributable to qui tam cases. In most years since, the government has recovered more than $1 billion under the False Claims Act, and qui tam actions were responsible for the lion’s share. In 2006, DOJ set its previous record of more than $3.1 billion in settlements and judgments for fraud and false claims.

Sen. Charles Grassley (R-Iowa) has successfully urged Congress to repeat the FCA’s successes in combatting fraud by establishing the new IRS Whistleblower Program in late 2006, and the new SEC Whistleblower and CFTC Whistleblower Programs under the 2010 Dodd-Frank law. We have written extensively about the evolution of each program since they were created.

In a time of budget deficits, stopping fraud that drains taxpayer funds is a goal that any elected official should endorse. DOJ should take a bow for tripling FCA recoveries in FY 2012.

The post Another Record Year–False Claims Act Recoveries Triple in FY 2012 appeared first on Whistleblower Lawyer Blog.

While she dodged a bullet, the case jolted lawyers handling health care fraud investigations, which are more typically civil cases under the False Claims Act.

Yet also last week, prosecutors succeeded in convicting Raj Rajaratnam for insider trading. Wall Street’s hedge fund industry took note of the government’s use of investigative tools such as recorded phone calls.

The post Fraud Enforcement Adds Teeth by Pursuing Individuals Allegedly Responsible for Organizations’ Frauds appeared first on Whistleblower Lawyer Blog.

This discussion is part of a fascinating gathering this April in South Beach–the OffshoreAlert Conference. As the brochure promises:

Where else could tax collectors mingle with tax minimizers, asset tracers with asset protectors, regulators with the regulated, whistleblowers with their former employers and crooks with prosecutors?

How to protect whistleblowers from criminal and civil liability was a topic my panel discussed at the 2010 IRS Whistleblower Boot Camp in Washington. Because we had the IRS Chief Counsel’s Office participating in that discussion, we were unable to discuss directly what went wrong for Birkenfeld as he brought important information about tax evasion to the attention of the IRS, but ended up serving a prison sentence of 40 months. (We have written previously about Birkenfeld’s errors revealed in the court record.)

At the OffshoreAlert Conference discussion this year, I will moderate the panel discussion about what can be done to protect whistleblowers from criminal and civil exposure. Joining me are former Justice Department official and former General Counsel of the U.S. Department of Homeland Security Joe D. Whitley; former prosecutor and now whistleblower attorney Marc Raspanti; and federal and international tax attorney Richard Rubin.

The program description is reprinted below:

Avoiding the Mistakes of the UBS/Birkenfeld Case: Protecting Whistleblowers from Criminal and Civil Liability

Time: 1:15 PM – 2:30 PM
Date: Tuesday, April 5, 2010
Keywords: Money Laundering & Compliance
“Swiss banker turned whistleblower ended up with a prison sentence” read one headline. How did UBS whistleblower Bradley Birkenfeld end up being prosecuted for a felony, and serving a forty-month prison sentence–even though the IRS found his information essential to its $780 million settlement with UBS? How can other whistleblowers minimize their risks of facing criminal and civil liability when they report substantial financial violations?

This panel of a former senior U.S. Department of Justice official, other former criminal prosecutors, and an international tax attorney will discuss what the UBS whistleblower apparently did to subject himself to criminal prosecution-and the steps a whistleblower must take to avoid that fate. The whistleblower lawyers on the panel will discuss the “ground rules” for minimizing the risks to whistleblowers of criminal and civil liability, both in the United States and other countries.

•Michael A. Sullivan, Whistleblower Lawyer, Finch McCranie (Atlanta)

•Marc S. Raspanti, Whistleblower Lawyer and Former Prosecutor, Pietragallo Gordon Alfano Bosick & Raspanti, LLP (Philadelphia)

•Richard R. Rubin, Federal and International Tax Attorney, Rubin Law (Johannesburg/Atlanta)

•Joe D. Whitley, former U.S. Acting Associate Attorney General and former General Counsel of U.S. Department of Homeland Security, Greenberg Traurig, LLP (Washington, D.C. & Atlanta)

The post Offshore Alert Conference: Protecting Whistleblowers from Criminal and Civil Liability appeared first on Whistleblower Lawyer Blog.

This is an update from a previously published article by whistleblower lawyer blog author Michael A. Sullivan.

III. Overview of How the Modern False Claims Act Works (with Comparisons to Some State False Claims Acts)

A. Conduct Prohibited

The federal False Claims Act imposes civil liability under several different theories, only four of which were generally used before FERA. FERA has added an additional theory of liability for retention of overpayments, which now will likely be used quite often in health care cases:

First, the Act makes liable any person who knowingly presents, or causes to be presented, a “false or fraudulent claim for payment or approval.”

Second, the Act creates liability for using a “false record or statement.” It imposes liability on any person who “knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim.”

“Claim” is broadly defined, and is not limited to submissions made directly to the federal government:

(2) the term “claim”–

(A) means any request or demand, whether under a contract or otherwise, for money or property and whether or not the United States has title to the money or property, that–

(i) is presented to an officer, employee, or agent of the United States; or
(ii) is made to a contractor, grantee, or other recipient, if the money or property is to be spent or used on the Government’s behalf or to advance a Government program or interest, and if the United States Government–

(I) provides or has provided any portion of the money or property requested or demanded; or (II) will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded; and
(B) does not include requests or demands for money or property that the Government has paid to an individual as compensation for Federal employment or as an income subsidy with no restrictions on that individual’s use of the money or property.

Third, since the government also can be defrauded when a private entity underpays or avoids paying an obligation to the government, the Act contains what is known as a “reverse false claim” provision. FERA has added language to this provision to establish liability for retention of overpayments. This provision of the FCA creates liability for any person who “knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Government, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government.” For example, a company that is obligated to pay royalties to the government under an oil lease can be held liable if it uses false records or statements to pay less than what it owes. Health care providers can now also be liable for retaining identified overpayments from federal health care programs such as Medicare and Medicaid.

FERA has introduced the following definition of “obligation”:

(3) the term “obligation” means an established duty, whether or not fixed, arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship, from a fee-based or similar relationship, from statute or regulation, or from the retention of any overpayment; . . . .

Fifth, the False Claims Act imposes liability under a “conspiracy” provision, which FERA has broadened to cover conspiracy to violate any substantive provision of the FCA. Any person who “conspires to commit a violation of subparagraph (A), (B), (D), (E), (F), or (G)” is liable under this provision.

State False Claims Acts compared: Before FERA included retention of overpayments as a basis of FCA liability, several states-including Hawaii, Massachusetts, Nevada, Tennessee, and Wisconsin-had expanded the federal Act’s other four commonly-used theories of liability listed above. These state laws recognized a legal theory for holding liable a person or entity who is the “beneficiary” of the “inadvertent submission” of a false or fraudulent claim, if that person or entity fails to disclose (and presumably correct) the false claim after discovering it.
Moreover, Tennessee’s False Claims Act reaches beyond false or fraudulent “claims” and imposes liability for false or fraudulent “conduct” that apparently does not necessarily involve “claims” submitted to the state. This state law adds a new category of liability for “any false or fraudulent conduct, representation, or practice in order to procure anything of value directly or indirectly from the state or any political subdivision.”

B. Retaliation Protection for Employees, Contractors, and Agents

As noted, the federal False Claims Act also creates a cause of action for damages for retaliation against employees, contractors, and agents who assist in the investigation and prosecution of False Claims Act cases. This cause of action belongs to the employee alone, and the government does not share in any recovery for retaliation.
As summarized above, FERA and the Dodd-Frank Financial Reform Act have modified the federal FCA retaliation provision in section 3730(h) so that it now provides as follows:

(h) Relief from retaliatory actions.

(1) In general. Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under this section or other efforts to stop 1 or more violations of this subchapter.

(2) Relief. Relief under paragraph (1) shall include reinstatement with the same seniority status that employee, contractor, or agent would have had but for the discrimination, 2 times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees. An action under this subsection may be brought in the appropriate district court of the United States for the relief provided in this subsection.

(3) Limitation on Bringing Civil Action. A civil action under this subsection may not be brought more than 3 years after the date when the retaliation occurred.

31 U.S.C. § 3730(h).

State False Claims Acts compared: The New Jersey False Claims Act goes further than the federal Act’s retaliation provision. It authorizes, “where appropriate, punitive damages,” and affirmatively prohibits employers from attempting to restrict employees’ abilities to report evidence of fraud to the government.

C. Broad Definition of “Knowing” and “Knowingly”

The federal Act’s “scienter” requirement of “knowingly” presenting false claims, or “knowingly” using false records or statements, is broadly defined as well. A person is liable not only when acting with “actual knowledge,” but also when acting in “deliberate ignorance” or “reckless disregard” of the truth or falsity of the information in question. The Act also makes explicit that no “specific intent to defraud” need be shown to impose liability, and thus rejects this traditional “fraud” standard.

State False Claims Acts compared: The state False Claims Acts typically incorporate the same broad definitions of “knowing” and “knowingly,” and likewise makes clear that “[n]o proof of specific intent to defraud is required.” States have no leeway in this regard if they wish to qualify for the additional funds under the Deficit Reduction Act. In fact, when the Georgia bill was under consideration in 2007, Indiana’s statute had already been determined not to qualify that state for additional funds under the Deficit Reduction Act, precisely because the Indiana statute did not define “knowing” and “knowingly” as broadly as does the federal Act.

D. Damages and Penalties Under the False Claims Act

Exposure of defendants in False Claims Act cases can be enormous. First, the Act provides for treble damages-“3 times the amount of damages which the Government sustains because of the act of that person.”

Second, the Act now provides for a civil penalty of $5,000 to $10,000 for each false claim submitted, an amount that has been adjusted for inflation for more recent claims to $5,500 to $11,000 per violation.

State False Claims Acts: The state Acts likewise provide for treble damages and penalties that are typically $5,500 to $11,000 for each false claim submitted, although states are free to impose larger penalties. For instance, under the New York FCA enacted in 2007 and substantially amended in 2010 in light of FERA, penalties range from $6,000 to $12,000 for each false or fraudulent claim.

E. Some of the Peculiar Jurisdictional and Procedural Requirements
In Qui Tam Cases

The False Claims Act establishes a wholly different process for qui tam actions from the usual one encountered in civil litigation. The Act has unique jurisdictional and procedural requirements.

The qui tam relator brings the lawsuit for the relator and for the United States, in the name of the United States. The Complaint must be filed “in camera” and “under seal,” and must remain under seal for at least 60 days. The relator must serve the government under Rule 4 of the Federal Rules of Civil Procedure with a “copy of the complaint and written disclosure of substantially all material evidence and information the person possesses.”

In reality, courts regularly extend the seal for many months (or even years) at the government’s request. The purpose is to permit the government to evaluate and investigate the case and make its decision as to whether to intervene. Thus, it is not uncommon for the defendant to receive no notice for more than a year that it has been sued in a qui tam action, even as the government meets with the relator and relator’s counsel to develop the case against the defendant. Nonetheless, defense counsel may infer the existence of a qui tam action when the client or its employees are contacted by government agents.

If the government elects to intervene, it assumes primary responsibility for prosecuting the case, although the relator remains a party with certain rights to participate. The defendant is served once the complaint is unsealed, and has 20 days after service to respond.
If the government intervenes, it is not “bound by an act of the person bringing the action.” The government can file its own complaint and can expand or amend the allegations made. Once it has intervened, the government also has the right to dismiss the case notwithstanding the relator’s objections, but the relator has a right to be heard on the issue.

The government may petition the court before intervention for a partial lifting of the seal in order to disclose the complaint to the defendant and discuss resolution of the case, even before it decides whether to intervene.

If the government elects not to intervene, the relator has the right to “conduct the action.” Although the relator must prosecute the case without the government, as stated the relator is entitled to a larger share of any recovery, 25-30%, in non-intervened cases.
After intervention, the government is authorized to settle the case even if the relator objects, but the relator has a right to a “fairness” hearing on any such settlement. In actuality, a relator’s objections are highly unlikely to stop a settlement that the government, after intervention, seeks to make.

Before PPACA, the Act stated that, when there is an action “based upon the public disclosure of allegations or transactions” in one of three specified categories of places where disclosures can occur, the court shall lack jurisdiction over the action, unless “the person bringing the action is an original source of the information.” The three specified places of “public disclosure” were “[1] in a criminal, civil, or administrative hearing, [2] in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or [3] from the news media.”

PPACA has removed this jurisdictional bar, has authorized the government to prevent dismissal on this basis if it chooses, and has relaxed the standard for relators to establish that they are an “original source” as a means of avoiding dismissal on that basis as well. In addition, PPACA limited the type of public disclosures in question to federal sources, and thus pre-empted for future violations the Supreme Court’s ruling shortly thereafter in 2010 in Graham County Soil & Water Conservation District v. United States ex rel. Wilson, 130 S. Ct. 1396 (2010)(state report created public disclosure under prior version of FCA)
.
State False Claims Acts compared: The state False Claims Acts establish essentially the same procedures. For example, the Georgia Act directs that the complaint and “written disclosure of substantially all material evidence and information shall be served on the Attorney General.” The complaint must be filed in camera and shall remain under seal for at least 60 days, and it is not served on the defendant while it remains under seal. The Attorney General may move to extend the time under seal in order to investigate the allegations of the complaint, all pursuant to section 49-4-168.1(c).

The post Part 4: How the False Claims Act Works After the 2009-2010 Amendments (with Comparisons to Some State False Claims Acts) appeared first on Whistleblower Lawyer Blog.

As a former defense attorney who now represents whistleblowers, I have been asked to present a program at this conference with Rick Shackelford of King & Spalding, to discuss these major amendments to the False Claims Act–the first since 1986. Congress acted decisively in three recent major bills to restore the False Claims Act to its intended strength, in the face of court decisions that created obstacles to its use.

The recent amendments were part of the Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, 123 Stat. 1617 (“FERA”); the Patient Protection and Affordable Care Act, Pub. L. 111-148, 124 Stat. 119 (“PPACA”); and the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (the “Dodd-Frank Financial Reform Act”).

This week’s forum is sponsored by the American Health Lawyers Association and Health Care Compliance Association.

An updated discussion of the False Claims Act after these 2009 and 2010 changes will appear soon on this Whistleblower Lawyer Blog. A brief summary of those important changes to the Act is below:

Responding to variety of court decisions since 1986 that had limited the FCA’s effect, Congress again acted decisively in 2009 and 2010 with amendments, in three stages:

First, the 2009 Fraud Enforcement and Recovery Act (“FERA”) legislatively overruled judicial decisions that had limited the FCA’s reach, including Allison Engine Co. v. United States ex rel. Sanders, 128 S. Ct. 2123 (2008); United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488 (D.C. Cir. 2004), cert. denied, 544 U.S. 1032 (2005); and United States ex rel. DRC, Inc. v. Custer Battles, LLC, 376 F. Supp. 2d 617 (E.D. Va. 2005), rev’d, 562 F.3d 295 (4th Cir. 2009). The major effects of the 2009 FERA amendments included the following:

1. The amendments expanded the definition of “claim,” and fraud directed against government contractors, grantees and other recipients is now plainly covered by the FCA.

2. Funds administered by the United States government (such as in Iraq) are now included within the FCA’s protections.

3. Retaining overpayments of money from the government is now an explicit basis of liability, which is an important broadening of the Act from the perspective of health care providers, among others.

4. Liability for “conspiracy” to violate the FCA is far broader, and now includes conspiring to commit a violation of any substantive FCA theory of liability.

5. Protection of whistleblowers and others against “retaliation” now extends not only to “employees,” but also to “contractors” and “agents”; and persons other than “employers” potentially may be held liable for retaliation.

6. In investigating, the government now has authority to use “civil investigative demands” more broadly to gather evidence and take testimony, and to share information more with state and local authorities and with whistleblowers/relators.

7. A standard definition of what is “material” now applies in False Claims Act cases.

8. The statute of limitations has been clarified in qui tam cases to facilitate the government’s asserting its own claims.

Second, in the 2010 Patient Protection and Affordable Care Act (“PPACA”), Congress made other important changes to the FCA. From a relator’s perspective, perhaps most significant was eliminating language in the “public disclosure” provision (section 3730(e)(4)(a)) that sometimes deprived the court of subject matter jurisdiction. Congress rewrote that provision so that the court no longer loses subject matter jurisdiction even if a “public disclosure” has occurred. Another change to this section was to empower the government to prevent dismissals based on “public disclosure” through the following language: “the court shall dismiss an action or claim under this section, unless opposed by the Government . . . .”

In addition, from a health care entity’s perspective, the most important FCA change in PPACA may be that it clarified and extended liability for overpayments identified but retained by providers in Medicare and Medicaid claims.

Third, in the July 2010 Dodd-Frank Financial Reform Act, Congress created a uniform three year statute of limitations for claims of “retaliation” pursuant to section 3730(h). It also corrected an apparent drafting error in FERA’s 2009 changes to the same section by restoring its intended breadth. The anti-retaliation provision now encompasses (a) not only the pre-FERA definition of “protected conduct” as “lawful acts done . . . in furtherance of [an FCA action]” (which FERA had mistakenly dropped from the statute), but also (b) FERA’s expansion of the definition of “protected conduct” to include “other efforts to stop 1 or more violations [of the FCA] . . . .” 31 U.S.C. § 3730(h).

These changes are intended to restore the False Claims Act to its intended strength as the nation’s primary anti-fraud civil statute. It owes its success to private citizen whistleblowers who report fraud against the government.

The post Health Care Fraud Cases and 2009-2010 Amendments to False Claims Act Discussed at National Fraud and Compliance Forum appeared first on Whistleblower Lawyer Blog.