On May 19, 2025, the Department of Justice (DOJ) announced its Civil Rights Fraud Initiative, outlining its plan to use the civil False Claims Act (FCA) to investigate and pursue claims against those who “certify compliance...more
A circuit split over the causation standard under the federal Anti-Kickback Statute (AKS) could grow wider after a recent Northern District of Illinois (NDIL) decision. In United States ex rel. Jeffrey Wilkerson & Larry...more
President Trump’s January 21 Executive Order targeting Diversity, Equity, and Inclusion Programs (DEI) (the “January 21 Executive Order”) and, specifically, § 3(b)(iv)) (the Certification Provision) cannot be the basis for...more
It’s now 3–1, with the First Circuit (2025) aligning with the Sixth (2023) and Eighth (2022) Circuits finding the meaning of the words “resulting from” — as used in a 2010 amendment to the federal Anti-Kickback Statute (AKS)...more
President Trump’s January 21, 2025, executive order titled “Ending Discrimination and Restoring Merit-Based Opportunity” (“Executive Order”) directs the termination of federal government practices and policies that protect...more
1/29/2025
/ Anti-Discrimination Policies ,
Compliance ,
Department of Justice (DOJ) ,
Department of Labor (DOL) ,
Diversity ,
Diversity and Inclusion Standards (D&I) ,
Enforcement Actions ,
Environmental Social & Governance (ESG) ,
Executive Orders ,
False Claims Act (FCA) ,
Federal Contractors ,
Trump Administration
The demise of Chevron opens up new potential defenses in False Claims Act (FCA) cases.
On June 28, 2024, the Supreme Court, in Loper Bright Enterprises v. Raimondo, put an end to Chevron deference to agency interpretation...more
The Department of Justice’s (DOJ) annual False Claims Act (FCA) press release revealed that it increased self-initiated investigations for the federal fiscal year ending September 30, 2023, by 1.5 times over the prior year....more
Multinational companies should be alert to legal exposure under the False Claims Act (FCA). The FCA is a civil statute that can be quite damaging to a multinational company for several reasons:
The FCA has extremely...more
This year will see a continued proliferation of enforcement against health-care fraud, with old and new theories. Some hot spots for enforcement will involve cases about new technologies; data outliers; entities perceived as...more
1/4/2024
/ Ambiguous ,
Anti-Kickback Statute ,
Biden Administration ,
Compliance ,
Coronavirus/COVID-19 ,
Cyber Crimes ,
Data Mining ,
Department of Health and Human Services (HHS) ,
Department of Justice (DOJ) ,
Enforcement ,
Executive Orders ,
False Claims Act (FCA) ,
Fraud ,
Healthcare ,
Hospice ,
Kickbacks ,
SCOTUS ,
Telemarketing
On June 16, 2023, the Supreme Court of the United States issued an 8–1 decision in United States ex rel. Polansky v. Executive Health Resources, Inc., pertaining to the government’s authority to dismiss False Claim Act (FCA)...more
The Supreme Court today issued its ruling on one of the most significant False Claims Act (FCA) cases it has considered in the last several years. In the consolidated cases of United States ex rel. Schutte et al. v. SuperValu...more
Does violating requirements amount to fraud under the False Claims Act (FCA) when the requirements allegedly violated are unclear? There is currently a circuit split and petitions for review pending to the Supreme Court as to...more
1/11/2023
/ Ambiguous ,
Centers for Medicare & Medicaid Services (CMS) ,
Fair Credit Reporting Act (FCRA) ,
False Claims Act (FCA) ,
Fraud ,
Health Care Providers ,
ICD Codes ,
Medical Reimbursement ,
Medicare Advantage Organizations (MAOs) ,
Motion to Dismiss ,
Regulatory Requirements ,
SCOTUS
Addressing a recent motion to dismiss, the Northern District of California predominantly denied Kaiser Permanente’s (“Kaiser”) motion to dismiss the government’s complaint in United States ex rel. Osinek v. Permanente Medical...more
On December 6, 2022, the Supreme Court heard argument in United States ex rel. Polansky v. Executive Health Resources, Inc., a case with potential implications on the cost and longevity of certain False Claims Act (FCA)...more
Courts are grappling with unique questions in the context of managed care programs in False Claims Act (FCA) cases. But are they getting it right? Two questions trending in courts relate to: (1) materiality under the FCA when...more
9/23/2022
/ Anti-Kickback Statute ,
Beneficiaries ,
Centers for Medicare & Medicaid Services (CMS) ,
Civil Liability ,
Department of Justice (DOJ) ,
Dismissal With Prejudice ,
False Claims Act (FCA) ,
Fee-for-Service ,
Fraud ,
Health Care Providers ,
Managed Care Contracts ,
MCOs ,
Medicare ,
Medicare Advantage ,
Risk Adjustment Formula ,
SCOTUS ,
Universal Health Services Inc v United States ex rel Escobar
When a company decides to self-disclose misconduct (or conduct that may be construed as such) to the government, that decision triggers a stream of additional questions. In the weighty deliberations about whether and what to...more
12/2/2021
/ Department of Health and Human Services (HHS) ,
Department of Justice (DOJ) ,
Disclosure Requirements ,
False Claims Act (FCA) ,
Health Care Providers ,
Healthcare ,
Healthcare Fraud ,
Legal Representatives ,
Liability ,
OIG ,
Self-Disclosure Requirements ,
Suppliers
On October 28, 2021, Deputy Attorney General Lisa Monaco announced three changes to the Department of Justice’s (DOJ) approach to corporate criminal enforcement. Monaco announced the changes during the Keynote Address at the...more
On July 1, 2021, United States Attorney General Merrick Garland rescinded the Brand Memorandum and the Sessions Memorandum, which directed Department of Justice (DOJ) attorneys to refrain from using agency guidance to bring...more
On Monday February 22, 2021, the U.S. Supreme Court declined to grant certiorari in CareAlternatives v. United States (CareAlternatives), a case on appeal from the Third Circuit that could have assessed the issue of...more
Following the Eleventh Circuit’s and Third Circuit’s recent rulings in United States v. AseraCare and United States v. Care Alternatives, respectively, the Ninth Circuit Court of Appeals has now also addressed the question of...more
The COVID-19 virus crush is upon us at this moment. Like in 2008 with TARP, the government has invited businesses around the country to apply for CARES Act relief to help survive this pandemic...more
4/9/2020
/ Affiliated-Business Arrangements ,
Board of Directors ,
Business Interruption ,
CARES Act ,
Coronavirus/COVID-19 ,
Economic Injury Disaster Loans ,
False Claims Act (FCA) ,
Federal Loans ,
Financial Stimulus ,
Health Insurance ,
Paycheck Protection Program (PPP) ,
Payroll Taxes ,
Relief Measures ,
SBA ,
SBA Lending Programs ,
Shareholders ,
Small Business ,
Stocks ,
Tax Relief
In times of crisis, there are heroes, villains, victims, and everyone in between. Amidst the COVID-19 crisis, many valiant efforts are under immense time pressure—to care for the ill, to protect the vulnerable, to find and...more
The United States Court of Appeals for the Third Circuit ruled last week that whistleblower relators need not show “objective falsity” to prove their claims, and that a dispute among physician experts about a clinical...more
3/12/2020
/ False Claims Act (FCA) ,
Health Care Providers ,
Hospice ,
Insurance Fraud ,
Life Sciences ,
Medicare ,
Objective Falsity ,
Physicians ,
Professional Liability ,
Qui Tam ,
Relators ,
Scienter ,
Triable Issue of Fact ,
Whistleblowers
Federal enforcers typically announce (formally as well as informally) work plans or focus areas for the upcoming year that can provide some guidance as to where providers might anticipate enforcement action and, where they...more
All hospice providers routinely should assess risk exposure under the False Claims Act — now with the benefit of the U.S. Court of Appeals for the Eleventh Circuit’s long-awaited decision in United States v. AseraCare Inc. ...more
2/4/2020
/ Appeals ,
Evidence ,
False Claims Act (FCA) ,
Health Care Providers ,
Hospice ,
Jury Verdicts ,
Medical Experts ,
Medical Records ,
Medicare ,
Objective Falsity ,
Physicians ,
Summary Judgment ,
Terminal Illness Treatments ,
Trial Court Orders ,
Vacated