This is the second post of a two-part discussion of FCA pleading standards and discusses the pleading requirements for connecting a fraudulent scheme to the submission of false claims.  Read our previous post on the requirements for pleading the details of a fraudulent scheme.

Pleading Submission of False Claims

Most courts require FCA plaintiffs to round out their FCA pleadings with allegations that false claims were submitted to the government as a result of the alleged fraud scheme.  Some courts require plaintiffs to identify specific representative examples, while others permit the pleading of “reliable indicia” leading to a “strong inference” that claims were actually submitted.

Pleading Actual Claims  

The U.S. District Court for the District of Massachusetts recently laid out the level of detail generally expected for pleading the submission of actual false claims.  In U.S. ex rel. Wollman v. General Hospital Corporation, it held the relator made insufficient allegations of actual claims submitted as part of a fraudulent billing scheme involving overlapping surgeries when the complaint included “no dates, identification numbers, amounts, services, individuals involved, or length of time” for any of the surgeries at issue.

Continue Reading Recent Developments in FCA Pleading Standards – Part Two

On August 24, 2016, DOJ announced a $2.95 million settlement with defendants facing FCA liability for allegedly delaying repayment of more than $800,000 in Medicaid overpayments. The settlement amounted to nearly 3.5 times the amount of the improper billings stipulated in the settlement documents.

This is the first FCA settlement involving the Affordable Care Act’s 60-day repayment provision and flows from allegations that the defendants violated the obligation to report and remit overpayments within 60 days of when such payments have been identified. The stipulation accompanying the parties’ settlement of the FCA claims at issue also included language that the defendants “admit[ted], acknowledge[d], and accept[ed] responsibility for” the conduct underlying the government’s allegations regarding the  violation of this obligation.

Continue Reading Settlement Reached in First Reverse FCA Case Based on 60-Day Repayment Provision

In addition to the most common grounds upon which dismissal is sought in FCA actions, Mount Sinai Hospital and Mount Sinai Radiology Associates recently requested that the district court throw out FCA claims based on their argument that relators relied on improperly obtained patient records in support of their allegations.  Relators, who were employed in various positions with defendants, alleged FCA violations based upon false and fraudulent billing in connection with physician services and attached patient medical records to their complaint in support of their FCA claims. Defendants argued that relators should be precluded from relying on the medical records attached to their complaint because allegedly relators obtained those records without authorization following an internal investigation at the Hospital.  Relators countered that there were no facts before the district court to support any assertion that the medical records were obtained improperly and cited HIPAA’s exception for whistleblowers to reveal information to government authorities and private counsel if those whistleblowers have a good faith belief that their employer engaged in unlawful conduct.

Continue Reading Relator’s Use of Medical Records Insufficient to Warrant Dismissal of FCA Complaint

Among the many changes under the Affordable Care Act (ACA), few have generated as much discussion as Section 6402(d), requiring healthcare providers to report and return any overpayment within 60 days of the date the overpayment is “identified” or risk liability under the FCA for a “reverse” false claim. Providers have grappled with how and when this provision would be applied as enforcement agencies have largely remained silent in offering an interpretation. This silence changed last week as a federal district court issued a ruling defining what it means to “identify” an overpayment followed by the public announcement of a settlement resolving an FCA action based upon a provider’s failure to refund credit balances.  Both cases demonstrate the importance of providers exercising due diligence in promptly reviewing and addressing potential overpayment situations.

On August 3, 2015, the U.S. District Court for the Southern District of New York offered the first judicial interpretation of the ACA’s 60-day rule, siding with DOJ’s interpretation of  “identified” in U.S. ex rel. Kane v. Healthfirst, Inc. et al., No. 1:11-cv-02325 (S.D.N.Y.).  And, on August 4, 2015, the day following the Kane decision, providers of pediatric home nursing services reached a joint FCA settlement in two whistleblower cases, U.S. ex rel. Odumosu v. Pediatric Servs. of Am. Healthcare, N.D. Ga., No. 1:11-cv-1007, and U.S. ex rel. McCray v. Pediatric Servs. of Am. Healthcare, S.D. Ga., No. 4:13-cv-127. The FCA settlement is the first settlement of its kind based upon a healthcare provider’s failure to identify potential overpayments.

Our full discussion of these cases and the implications for healthcare providers can be found here.