On August 1, 2013, Reps. Howard Coble (R-N.C.) and David Scott (D-Ga.) introduced bipartisan legislation in the House that would amend the federal False Claims Act (FCA) by adding several procedural hurdles that make it more difficult to bring an action against a healthcare provider.  Before even requesting information from a provider in a FCA investigation, the legislation would require the Attorney General to certify that (1) the government agency has examined all regulations, guidelines, and billing instructions relevant to the allegations; (2) such regulations, guidelines, and billing instructions are unambiguous; and (3) the allegations are viable.  The legislation, H.R. 2931, is titled, “Fairness in Health Care Claims, Guidance, and Investigations Act.”

The legislation also would bar an action based on a claim submitted or an overpayment retained with respect to a federal healthcare program if the provider is in “substantial compliance” with a model compliance plan, or if the provider relied in good faith on federal policy, erroneous information provided by an agency, or agency audit findings.  It would raise the plaintiff’s burden of proof from a “preponderance of the evidence” to “clear and convincing evidence.”  Finally, the legislation would require that the amount at issue be material, which is defined as exceeding a proportion (to be established in regulations by the Secretary in consultation with the Secretary of Defense) of the total submitted claims by that healthcare provider during the same calendar year.

In a letter to Rep. Coble dated August 1, 2013, the American Hospital Association immediately expressed its support for the legislation.  A copy of the letter is available here.   H.R. 2931 was referred to the House Committee on the Judiciary upon introduction.   A copy of the legislation is available here.

Reporter, Kate Stern, Atlanta, +1 404 572 4661, kstern@kslaw.com.