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White Collar Posts

False Claims Act Update: The First Wave of “Materiality” Decisions Post-Escobar >
October 25, 2016
By: Barbara Rowland and 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
By: Barbara Rowland
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: Barbara Rowland and 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
By: Matthew T. Newcomer
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
By: Barbara Rowland
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
By: Barbara Rowland and Matthew T. Newcomer
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
By: Barbara Rowland and Matthew T. Newcomer
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
By: Barbara Rowland
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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