The demise of Chevron opens up new potential defenses in False Claims Act (FCA) cases.
On June 28, 2024, the Supreme Court, in Loper Bright Enterprises v. Raimondo, put an end to Chevron deference to agency interpretation...more
The Department of Justice’s (DOJ) annual False Claims Act (FCA) press release revealed that it increased self-initiated investigations for the federal fiscal year ending September 30, 2023, by 1.5 times over the prior year....more
Multinational companies should be alert to legal exposure under the False Claims Act (FCA). The FCA is a civil statute that can be quite damaging to a multinational company for several reasons:
The FCA has extremely...more
This year will see a continued proliferation of enforcement against health-care fraud, with old and new theories. Some hot spots for enforcement will involve cases about new technologies; data outliers; entities perceived as...more
1/4/2024
/ Ambiguous ,
Anti-Kickback Statute ,
Biden Administration ,
Compliance ,
Coronavirus/COVID-19 ,
Cyber Crimes ,
Data Mining ,
Department of Health and Human Services (HHS) ,
Department of Justice (DOJ) ,
Enforcement ,
Executive Orders ,
False Claims Act (FCA) ,
Fraud ,
Healthcare ,
Hospice ,
Kickbacks ,
SCOTUS ,
Telemarketing
On June 16, 2023, the Supreme Court of the United States issued an 8–1 decision in United States ex rel. Polansky v. Executive Health Resources, Inc., pertaining to the government’s authority to dismiss False Claim Act (FCA)...more
The Supreme Court today issued its ruling on one of the most significant False Claims Act (FCA) cases it has considered in the last several years. In the consolidated cases of United States ex rel. Schutte et al. v. SuperValu...more
The presence of private equity (PE) investment has exploded in recent years in all areas of the health care sector. PE in health care is a good thing when done right: It can pave the way for much needed innovation,...more
3/30/2023
/ Antitrust Division ,
Biden Administration ,
Department of Justice (DOJ) ,
Due Diligence ,
Enforcement ,
Healthcare ,
Investment ,
Kickbacks ,
Medicaid ,
Private Equity ,
Reimbursements ,
The Clayton Act
The United States Supreme Court has changed its mind as to whether to rule on the proper test to assess the applicability of the attorney-client privilege to dual purpose communications. Last year, the Supreme Court granted...more
Soon the Supreme Court may provide new direction as to how to assess whether the attorney-client privilege protects dual purpose communications — that is, communications with both a legal and non-legal purpose. On Monday,...more
Does violating requirements amount to fraud under the False Claims Act (FCA) when the requirements allegedly violated are unclear? There is currently a circuit split and petitions for review pending to the Supreme Court as to...more
1/11/2023
/ Ambiguous ,
Centers for Medicare & Medicaid Services (CMS) ,
Fair Credit Reporting Act (FCRA) ,
False Claims Act (FCA) ,
Fraud ,
Health Care Providers ,
ICD Codes ,
Medical Reimbursement ,
Medicare Advantage Organizations (MAOs) ,
Motion to Dismiss ,
Regulatory Requirements ,
SCOTUS
Addressing a recent motion to dismiss, the Northern District of California predominantly denied Kaiser Permanente’s (“Kaiser”) motion to dismiss the government’s complaint in United States ex rel. Osinek v. Permanente Medical...more
On December 6, 2022, the Supreme Court heard argument in United States ex rel. Polansky v. Executive Health Resources, Inc., a case with potential implications on the cost and longevity of certain False Claims Act (FCA)...more
Courts are grappling with unique questions in the context of managed care programs in False Claims Act (FCA) cases. But are they getting it right? Two questions trending in courts relate to: (1) materiality under the FCA when...more
9/23/2022
/ Anti-Kickback Statute ,
Beneficiaries ,
Centers for Medicare & Medicaid Services (CMS) ,
Civil Liability ,
Department of Justice (DOJ) ,
Dismissal With Prejudice ,
False Claims Act (FCA) ,
Fee-for-Service ,
Fraud ,
Health Care Providers ,
Managed Care Contracts ,
MCOs ,
Medicare ,
Medicare Advantage ,
Risk Adjustment Formula ,
SCOTUS ,
Universal Health Services Inc v United States ex rel Escobar
When a company decides to self-disclose misconduct (or conduct that may be construed as such) to the government, that decision triggers a stream of additional questions. In the weighty deliberations about whether and what to...more
12/2/2021
/ Department of Health and Human Services (HHS) ,
Department of Justice (DOJ) ,
Disclosure Requirements ,
False Claims Act (FCA) ,
Health Care Providers ,
Healthcare ,
Healthcare Fraud ,
Legal Representatives ,
Liability ,
OIG ,
Self-Disclosure Requirements ,
Suppliers
On October 28, 2021, Deputy Attorney General Lisa Monaco announced three changes to the Department of Justice’s (DOJ) approach to corporate criminal enforcement. Monaco announced the changes during the Keynote Address at the...more
Across the country, companies have been grappling with website accessibility challenges filed by serial plaintiffs alleging the company’s website is not fully accessible to individuals with disabilities. The complaints...more
On July 1, 2021, United States Attorney General Merrick Garland rescinded the Brand Memorandum and the Sessions Memorandum, which directed Department of Justice (DOJ) attorneys to refrain from using agency guidance to bring...more
The COVID-19 Public Health Emergency (PHE) is expected to prompt unprecedented levels of regulatory enforcement activity that is focused on the use of telemedicine. In fact, fraudulent and abusive telehealth practices was an...more
7/16/2021
/ Audits ,
CARES Act ,
Centers for Medicare & Medicaid Services (CMS) ,
Coronavirus/COVID-19 ,
Data Privacy ,
Department of Justice (DOJ) ,
Enforcement Actions ,
FQHC ,
Fraud ,
Health Insurance Portability and Accountability Act (HIPAA) ,
OCR ,
OIG ,
Public Health Emergency ,
Relief Measures ,
Rural Health Care Providers ,
Telehealth
Three partners in Foley’s health care industry team—Monica Chmielewski, Jana Kolarik, and Lori Rubin—attended the Federation of American Hospitals (FAH) Conference and Business Exposition from June 6-8, 2021 in Nashville,...more
On Monday February 22, 2021, the U.S. Supreme Court declined to grant certiorari in CareAlternatives v. United States (CareAlternatives), a case on appeal from the Third Circuit that could have assessed the issue of...more
Businesses that applied for a Small Business Administration’s (SBA) Paycheck Protection Program (PPP) loan have a chance to change their minds if they return the money by May 14, 2020.
With the onslaught of COVID-19...more
Businesses that applied for a Small Business Administration’s (SBA) Paycheck Protection Program (PPP) loan have a chance to change their minds if they return the money by May 7, 2020.
With the onslaught of COVID-19...more
With the onslaught of COVID-19 business closures, the government invited businesses around the country to apply for CARES Act relief to help survive the closures. Many have chosen to apply for assistance through the Small...more
Following the Eleventh Circuit’s and Third Circuit’s recent rulings in United States v. AseraCare and United States v. Care Alternatives, respectively, the Ninth Circuit Court of Appeals has now also addressed the question of...more
The COVID-19 virus crush is upon us at this moment. Like in 2008 with TARP, the government has invited businesses around the country to apply for CARES Act relief to help survive this pandemic...more
4/9/2020
/ Affiliated-Business Arrangements ,
Board of Directors ,
Business Interruption ,
CARES Act ,
Coronavirus/COVID-19 ,
Economic Injury Disaster Loans ,
False Claims Act (FCA) ,
Federal Loans ,
Financial Stimulus ,
Health Insurance ,
Paycheck Protection Program (PPP) ,
Payroll Taxes ,
Relief Measures ,
SBA ,
SBA Lending Programs ,
Shareholders ,
Small Business ,
Stocks ,
Tax Relief