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White Collar Posts

U.S. Attorney in Philadelphia Calls on Hospitals and Providers to Help Fight COVID-19-Related Fraud >
April 17, 2020
By: Carolyn H. Kendall and Abraham J. Rein
In a letter released Thursday, April 16, 2020, the U.S. Attorney for the Eastern District of Pennsylvania called on area hospitals, health systems, and other providers to join the government's fight against coronavirus-related fraud. Hospitals, providers, and other health care institutions are on the front lines of the coronavirus pandemic and know first-hand the challenges in obtaining critical supplies. They also are in a unique position to identify COVID-19-related fraud, such as offers to sell non-existent or fake equipment and price gouging of supplies.
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False Claims Act Relators Cannot Intervene in Criminal Proceedings that Result from Relator's Disclosure to Government, Third Circuit Rules >
November 19, 2019
By: Carolyn H. Kendall
On October 28, 2019, the Third Circuit in United States v. Wegeler addressed an issue of first impression, holding that a False Claims Act (FCA) relator whose information resulted in a criminal prosecution cannot intervene in that prosecution to pursue a whistleblower award. The court held a relator can only get a recovery by proceeding with his FCA qui tam action. In so ruling, the Third Circuit joined the Ninth and Eleventh Circuits, which are the only other circuits to have considered this issue.
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Eastern District of Pennsylvania Refuses to Keep FCA Qui Tam Complaint Under Seal to Facilitate Government's Settlement Negotiations >
November 7, 2018
By: Carolyn H. Kendall
On October 16, 2018, the District Court for the Eastern District of Pennsylvania denied the government's requested eleventh extension of the seal in a five-year-old False Claims Act qui tam case. The court ruled that the government's desire to continue settlement negotiations with the defendant, who had been given a copy of the complaint with the court's permission, did not constitute "good cause" to extend the seal, as required by the FCA.
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OIG 15-Year Exclusion for False Claims Act Violations by Lab Company and its CEO Sends Warning to FCA Defendants >
September 13, 2018
By: Carolyn H. Kendall
On August 17, 2018, a Department of Health and Human Services ALJ affirmed HHS OIG's 15-year exclusion of BestCare Laboratory Services, Inc. and its CEO from federal health care programs pursuant to the OIG's permissive exclusion authority. The exclusion was based on BestCare's submission of false claims for mileage reimbursement which violated CMS billing restrictions and formed the basis of a qui tam False Claims Act action, culminating in a $30 million damages award.
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Eastern District of Pennsylvania Forms Civil Enforcement Strike Force Adding Resources to False Claims Act Cases >
August 7, 2018
By: Internal Investigations & White Collar Practice Group
On August 1, 2018, U.S. Attorney for the Eastern District of Pennsylvania William M. McSwain announced the formation of an Affirmative Civil Enforcement (“ACE”) Strike Force within the U.S. Attorney's Office Civil Division. The ACE Strike Force's mission is to bring "additional firepower" to investigations and lawsuits that “prosecute fraud and abuse against government programs, including healthcare and procurement fraud,” as well as to enforce federal civil rights statutes and "combat the opioid crisis." The ACE Strike Force will initially include five Civil AUSAs and a team leader. 
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The New Tax Bill: Settlement Considerations Regarding Tax Treatment of Fines, Penalties, and Restitution >
January 18, 2018
By: James R. Malone, Jr. and Ronald H. Levine
Corporations and counsel negotiating settlement agreements with the United States under the False Claims Act, or other statutes that provide for monetary damages and penalties, must be aware of the impact of the recently enacted Tax Cuts and Jobs Act on the ability to take business tax deductions for these amounts. The Act made changes to tax treatment that are effective for agreements and orders that are finalized on or after December 22, 2017.
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Third Circuit Rejects FCA Claims of Medicare Part D Fraud Applying Post-Escobar Materiality Bar; Acknowledges Validity of Government Knowledge Inference Defense >
November 29, 2017
By: Carolyn H. Kendall
Earlier this month the United States Court of Appeals for the Third Circuit ended a long-fought False Claims Act case of alleged Medicare Part D fraud, holding that a pharmacy benefit manager's limited non-compliance with pharmacy claims processing requirements was not material to Medicare's payment decisions within the meaning of the Supreme Court's Escobar decision. On November 16, 2017, in United States ex rel. Spay v. CVS Caremark Corporation, the Third Circuit affirmed the district court's summary judgment dismissal in its second significant post-Escobar materiality decision. Interestingly, the appellate court veered away from the district court's holding that the "government knowledge inference" defense precluded liability for the PBM and instead found that the Relator failed to demonstrate that the alleged non-compliance met the Escobar materiality threshold.
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False Claims Act Update: The First Wave of “Materiality” Decisions Post-Escobar >
October 25, 2016
By: Carolyn H. Kendall
In our earlier post, we discussed the U.S. Supreme Court's implied false certification decision of Universal Health Services Inc. v. Escobar, in which the Court rejected a bright-line rule on the False Claims Act's (FCA) materiality standard and adopted a fact-specific standard that is being litigated on a case-by-case basis. We've now seen about a dozen FCA decisions on motions to dismiss or for summary judgment informed by the Court's opinion in Escobar.
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False Claims Act “Materiality” After Escobar >
July 11, 2016
Along with my Post & Schell colleagues, Matt Newcomer and Carolyn Kendall, I recently co-authored an article for Law360 that examined the U.S. Supreme Court's decision in Universal Health Services Inc. v. Escobar. We focused on the Court's rejection of a bright-line rule on the False Claims Act's materiality standard and adoption of a fact-specific standard that will need to be litigated on a case-by-case basis.
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Third Circuit Upholds Dismissal of FCA Suit Against Pottstown Memorial Medical Center >
June 22, 2016
By: John N. Joseph
On June 10, 2016, the Third Circuit Court of Appeals upheld a 2015 decision that dismissed allegations of kickbacks in violation of the False Claims Act (FCA) against Pottstown Memorial Hospital (Pottstown). The decision, concerning physician “on call” contracts, provides important guidance about the drafting of hospital-physician contracts in a competitive environment.
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The Government Pushes The False Claims Act Envelope; Government Contractors Push Back >
March 2, 2016
By: Yune D. Emeritz
In recent weeks, corporations have pushed back against Departments of Justice (DOJ) and Health and Human Service (HHS) efforts to expand False Claims Act (FCA) remedies to conduct beyond the FCA's explicit reach. Yet a huge incentive exists for DOJ to push the FCA envelope: DOJ's recently released 2015 Civil Division fraud recoveries - totaling over $3.5 billion - establish a six-year trend of recoveries in excess of $3 billion annually.
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U.S. Supreme Court to Decide the Viability of the Implied Certification Theory of False Claims Act Liability >
December 8, 2015
On December 4, 2015, the U.S. Supreme Court agreed to consider a challenge to the federal government's hotly-contested and Circuit-splitting “implied certification” theory of False Claims Act (FCA) liability. The implied certification theory has been a versatile and lucrative tool for whistleblowers and for the government, and a Supreme Court ruling on the viability of this prosecution theory may provide clearer boundaries and more certainty for those who do business with the government.
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HHS-OIG Senior Counsel Riordan Focuses on Kickbacks, Accountability, and the Role of Compliance in Pharma Compliance Congress Keynote >
October 27, 2015
On Wednesday, October 22, 2015, the 16th Annual Pharma Compliance Congress in Washington, D.C., was kicked off by keynote speaker Mary Riordan, HHS-OIG Senior Counsel and perhaps OIG's most well-known face to the pharmaceutical industry. In her talk, Ms. Riordan laid out three hot button areas for company compliance professionals: kickbacks, individual accountability, and the role of compliance in business operations. We thought these were worth sharing, particularly because two of the areas -- a jump in kickback cases and individual accountability in the investigation and resolution of corporate investigations -- were themes also emphasized by the government speakers at the AUSA Roundtable panel.
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PharMerica Settlements Highlight Potential for Dual False Claims Act and Controlled Substances Act Liability for Invalid Prescriptions >
August 29, 2015
The American Society for Pharmacy Law's (ASPL) Rx Ipsa Loquitur
In the July/August 2015 issue of Rx Ipsa Loquitur, the newsletter publication of the American Society for Pharmacy Law (ASPL), Internal Investigations & White Collar Defense Principal Barbara Rowland, and Principal Matthew T. Newcomer, examine potential dual False Claims Act and Controlled Substances Act liability for Medicare Part D and Medicaid providers.
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Heightened False Claims Exposure: 60-Day Period to Repay Begins When Overpayment is Suspected Rather Than Confirmed >
August 6, 2015
In a significant decision this week affecting Medicaid and potentially Medicare healthcare providers, a U.S. District Court for the Southern District of New York held that federal False Claims Act (FCA) liability applies to providers that do not repay “identified overpayments” within 60 days of “when a provider is put on notice of a potential overpayment, rather than the moment when an overpayment is conclusively ascertained.”
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Why a Recent Decision on Medicare and Medicaid Overpayments Has Providers on High Alert >
August 5, 2015
By: John N. Joseph
John Joseph talks with Modern Healthcare about a District Judge's decision in Kane v. Healthfirst Inc. et al. and U.S. v. Continuum Health Partners Inc. et al., and its impact on providers
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First Circuit Upholds $50 Million Tax Refund for Business Deduction Beyond Single Damages in False Claims Act Settlement >
August 17, 2014
The First Circuit Court of Appeals has upheld a jury verdict finding that a company settling claims under the False Claims Act (“FCA”) can deduct a significant portion of the settlement payment beyond single damages where the “economic reality” of the settlement payment reflects a compensatory purpose and the settlement agreement includes no tax characterization of the settlement payment.
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Article: "The Federal Prosecutor As Regulator: Good Manufacturing Practices and The False Claims Act" >
May 29, 2013
By: Ronald H. Levine
In the May 2013 issue of the Law Journal Newsletter's Business Crimes Bulletin, Post & Schell Principal Ron H. Levine explores the potential expansion of False Claims Act actions against medical device and pharmaceutical manufacturers for alleged violations of the FDA's current good manufacturing practices (cGMP) regulations.
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