Articles and Blogs

False Claims Act

Retained Overpayments Change the FCA Ball Game


Posted on May 5, 2013 in False Claims Act Defense

Written by: David B. Honig

False Claims Act defense attorneys have been warning government contractors, particularly Medicare and Medicaid providers, of increased risks and a reduced ability to defend against whistleblower complaints since the passage of the Fraud Enforcement Recovery Act of 2009 (“FERA”). The greatest risk comes from FERA’s addition of a new kind of reverse false claim:... READ MORE

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April False Claims Act Update


Posted on April 15, 2013 in False Claims Act Defense

Written by: David B. Honig

Introduction Three cases are addressed in a review of the False Claims Act decisions of the past month. The first, US v. Anchor Mortage Corp., is a significant Seventh Circuit case addressing the proper treble damages calculation under the statute. The second, US ex rel. Carter v. Halliburton, considers the application of the Wartimes Suspension... READ MORE

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Sixth Circuit: Violations of Conditions of Participation Insufficient Basis for FCA Claims


Posted on April 2, 2013 in False Claims Act Defense

Written by: David B. Honig and Andrew B. Howk

By David B. Honig and Andrew B. Howk In U.S. v. MedQuest, the Sixth Circuit held that violations by a provider of conditions of participation in Medicare were insufficient as a matter of law to “trigger the hefty fines and penalties created by the FCA.” This case was a reaffirmation by the Sixth Circuit... READ MORE

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CMS Publishes Administrative Ruling and Proposed Rule Providing Additional Part B Payment to Hospitals Denied Inpatient Payment


Posted on March 18, 2013 in False Claims Act Defense

Written by: David B. Honig

Executive Summary On March 13, 2013, CMS concurrently released an immediately effective administrative ruling (“CMS Ruling 1455-R” or “Ruling”) and a proposed rule (“Proposed Rule”) reversing CMS policy precluding hospitals from billing on an outpatient basis for inpatient services denied payment on grounds the services should have been provided on an outpatient basis.  Under... READ MORE

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OIG Issues New Guidelines for Review of State FCA Statutes


Posted on March 15, 2013 in False Claims Act Defense

Published by: Hall Render

The recent amendments to the False Claims Act, the Fraud Enforcement Recovery Act of 2009 (“FERA”), the Patient Protection and Affordable Care Act of 2010 (“PPACA”), and the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) continue to generate new rules and guidance. Effective 2007, Congress created incentives for States to pass and enforce mirror FCA statutes... READ MORE

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False Claims Act Update


Posted on February 27, 2013 in False Claims Act Defense

Written by: David B. Honig

Appellate Court Cases Three appellate-level FCA cases were reported in January and February 2013. Only one, U.S. ex rel. Nathan v. Takeda Pharmaceuticals North America, Inc., was selected for publication. All three cases addressed Rule 9(b)’s requirement that allegations of fraud be lead “with particularity.” The cases, read together, highlight the differences among Circuits... READ MORE

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The False Claims Act and Quality of Care


Posted on February 13, 2013 in False Claims Act Defense

Written by: David B. Honig

Can the False Claims Act be used by the government or whistleblowers in quality of care cases? The Department of Justice seems to think so, based in significant part on the retention of overpayments amendments to the FCA by FERA and the PPACA. For more please read Retention of Overpayments under FERA and the... READ MORE

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Here Be Dragons – Regulatory Law and the Advice-of-Counsel Defense


Posted on July 20, 2012 in False Claims Act Defense, Litigation Analysis

Written by: David B. Honig

Federal regulations are an enormous morass of complex, confusing, and often contradictory rules. The 2009 Code of Federal Regulations was 163,333 pages in 226 individual books.  The 2010 Federal Register, which contains new regulations proposed rules, and presidential papers, contained an additional 81,305 pages.  Intended as a roadmap, providing guideposts and requirements for dealing... READ MORE

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FCA – ACA = ?


Posted on June 25, 2012 in False Claims Act Defense

Written by: David B. Honig

This Thursday, June 28, 2012, the United States Supreme Court will decide the fate of the Patient Protection and Affordable Care Act, aka “Obamacare.” In so doing, it may also make significant changes in one of the newest and most complicated amendments the False Claims Act, with results that are almost impossible to predict.... READ MORE

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Do whistleblowers have to plead with particularity for every claim?


Posted on June 22, 2012 in False Claims Act Defense

Written by: David B. Honig

Pleading a False Claims Act case can be a tricky exercise, and in defending an FCA case, it is important to know just what the rules are for a whistleblower, and how they can fail to meet them. One of the most common mistakes made by whistleblowers is failing to “plead fraud with particularity,” a requirement... READ MORE

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