Health Civil Procedure

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Eighth Circuit Clarifies False Claims Act Pleading Standards for Whistleblowers

The United States Court of Appeals for the Eighth Circuit recently held that whistleblowers may satisfy the False Claims Act’s (FCA) heightened pleading standards without providing representative examples of false claims,...more

U.S. Supreme Court Update - September 2014

The Supreme Court is set to hear three state tax cases during its 2014-2015 term. The three cases, Alabama Department of Revenue v. CSX Transportation, Inc.; Comptroller of the Treasury of Maryland v. Wynne; and Direct...more

Wall v. VistaCare, Inc.: Successor Liability for Medicare Providers

A recent decision in the Northern District of Texas provides helpful guidance for health care corporations looking to limit their potential successor liability for Medicare fraud and overpayments. On August 4, 2014, U.S....more

HHS Asserts the Everybody-Does-It Defense

If that sounds familiar, your child may have a future as a lawyer for Health & Human Services. Because that’s one of the primary arguments asserted by HHS last Friday in its motion to dismiss the lawsuit by the American...more

Drug-Device Apple Cart Upset Again

On September 9, 2014, in Prevor v. Food and Drug Administration, the D.C. District Court held against FDA's interpretation of the definition of a medical device included in the Federal Food, Drug and Cosmetic Act (the act)....more

California Court Dismisses CMIA Claim Based on Possession of Stolen Medical Data

A health organization narrowly averted paying a potential $4 billion in damages under the California Confidentiality of Medical Information Act (CMIA) for losing the medical records of more than 4 million patients. Plaintiffs...more

Attention Hospitals! Act Now To Get 68 Cents For Your Medicare Dollar!

It’s no secret that CMS is drowning in appeals from denials of Medicare claims for inpatient care. The number of pending appeals was estimated at half a million back in February, and it’s only grown since then. One reason...more

Employee Taking Protected HIPAA Information Not Protected Under ADEA

The Health Insurance Portability and Accountability Act (HIPAA) requires health care providers and other businesses to protect the confidentiality of certain patient information. Last month in an unpublished decision, the...more

7th Circ. Limits FCA 'Worthless Services' Theory

On Aug. 20, 2014, the Seventh Circuit struck another blow against relators’ and the federal government’s increasingly aggressive False Claims Act theories of liability. Rejecting the relators’ use of the “worthless services”...more

HEAL Advisory: Whistleblowers Rewarded Again by SEC and the Judiciary

On August 29, 2014, two whistleblower developments of particular interest to health care and life science entities emerged from the Securities and Exchange Commission ("SEC") and the Eighth Circuit Court of Appeals,...more

California Employment Law Notes

Franchisor Is Not Liable For Franchisee's Alleged Sexual Harassment Of Its Employee - Patterson v. Domino's Pizza, LLC, 2014 WL 4236175 (Cal. S. Ct. 2014) - Taylor Patterson was hired by Sui Juris (a franchisee...more

D.C. Circuit Court of Appeals Agrees to Hear Halbig ACA Case Before Full Court

Following up on our Week 22 ACA Countdown to Compliance post, the D.C. Court of Appeals granted the government’s petition for en banc review in Halbig v. Burwell, which held low income subsidies to purchase coverage through...more

Eighth Circuit Decision Tilts Rule 9(b) Split toward Whistleblowers

Last Friday’s Eighth Circuit decision in Thayer v. Planned Parenthood of the Heartland favored the whistleblower in the ongoing controversy over specificity requirements in False Claims Act actions. The split had been even...more

Full D.C. Circuit to Rehear ACA Premium Tax Credit Case

The full U.S. Court of Appeals for the D.C. Circuit has vacated the 2-1 panel decision issued July 22, 2014, in Halbig v. Burwell, which struck down the Internal Revenue Service (IRS) Rule providing for Affordable Care Act...more

Federal Court Rejects Challenge to new CMS Recovery Auditor Contracts

On August 22, 2014, the U.S. Court of Federal Claims denied a challenge by incumbent Recovery Audit Contractor (RAC) CGI Federal, Inc. (CGI) to CMS’s plan to award new RAC contracts. Among other things, the Court found that...more

Medicare Beneficiaries Sue HHS Over 489-Day Backlog in ALJ Appeals

The Center for Medicare Advocacy (CMA) filed a complaint last week on behalf of five Medicare beneficiaries in federal district Court in Connecticut requesting a court order requiring the Secretary of HHS to clear a massive...more

Special (Limited) CMS Offer to Settle Claims on Appeal

With little fanfare just before the Labor Day weekend, CMS announced a program in which it would enter into administrative agreements with eligible providers in exchange for the providers’ withdrawal of pending appeals...more

Federal Appeals Courts Issue Contradictory Rulings on Federal Marketplace Subsidies under Affordable Care Act

Two federal appeals courts issued contradictory rulings on the validity of subsidies for the purchase of health insurance under the federal marketplace established pursuant to the Affordable Care Act (ACA). On July 22, a...more

Laboratory Discount Arrangements Survive Antikickback Statute Scrutiny

There has been question for some time whether in evaluating certain discount arrangements involving clinical laboratory tests under the federal antikickback statute (FAS), discount charges should be measured against the...more

CMS Makes Global Offer to Settle All Acute Care Inpatient Claims on Appeal

On August 29, 2014, CMS issued settlement terms to acute care hospitals with pending appeals of denials for inpatient claims. CMS is offering to settle all qualifying claims at 68 percent of the “net paid amount” of such...more

RAC Program to Resume Limited Reviews

On August 4, 2014, the Centers for Medicare and Medicaid Services (CMS) announced that it would allow the Recovery Audit Contractor Program (RAC) to resume a limited number of reviews in August. The program has been dormant...more

The Seventh Circuit Significantly Heightens the Bar for Proof in False Claims Act "Worthless Services" Cases

The United States Court of Appeals for the Seventh Circuit recently dealt a stinging blow to the False Claims Act (FCA) plaintiff's bar in United States ex. rel. Absher v. Momence Meadows Nursing Center, Inc. et al., Case...more

Washington Court of Appeals Expands "Jeopardy" Element of Claim for Wrongful Discharge in Violation of Public Policy

This month the Washington State Court of Appeals, Division III issued a ruling in Becker v. Community Health Systems, Inc. that expands protections in a wrongful termination action based on violation of a public policy....more

Third Circuit Affirms Dismissal of FLSA Overtime Claims in Hospital Meal Break Cases

On August 26, the United States Court of Appeals for the Third Circuit affirmed the District Court’s dismissal of the Fair Labor Standards Act (FLSA) overtime claims brought against a myriad of health care systems and their...more

Seventh Circuit Limits “Worthless Services” Theory under False Claims Act

On August 20, 2014, the Seventh Circuit struck another blow against relators’ and the federal government’s increasingly aggressive False Claims Act theories of liability. Rejecting the relators’ use of the “worthless...more

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