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Health Care Fraud

Fraudulent health care schemes come in many different forms and are carried out by entities throughout the health care industry....

Health Care Fraud and Abuse Starts New Session

This month marks Whistleblower Law Collaborative attorney Bob Thomas’ eighth year teaching his “Health Care Fraud and Abuse” seminar at BU, and it remains a popular one among students.  It is a 13-part, semester long course on the intricacies of the fraud and abuse problem in our health care system and what is being done about it.  (For a glimpse of how the course goes, here’s the syllabus.)

Class one covered the big picture:  how did the health care fraud problem come to exist?  What is the scope of the problem, and why is it so easy to defraud government health insurance plans, as well as private plans?  Who is working to slow down this problem, and what tools do they have at their disposal?

During class two, Health Care Fraud and Abuse did its first deep dive into the False Claims Act, the government’s primary weapon in this field and an extraordinarily versatile tool.  The statute allows federal prosecutors to seek treble damages, plus penalties of $11,000 per false claim, plus possible exclusion and debarment from the government health insurance programs.  See our blog Banner Year for DOJ and Whistleblowers in False Claims Act Cases.

For reading, the class took on the statute itself, as well as Department of Justice statistical records showing how much money has been recovered over the years via the False Claims Act (over $40 billion).  Moreover, the trend is clear that increasingly each year, the government relies on whistleblower suits for its investigative leads, as these suits now account for a greater amount of recovery that suits initiated by the government itself.

Several key points were stressed in the review of the statute:

How the liability provisions include not only the submission of false claims but causing them to be committed, conspiring to have them be submitted, and also the retention of overpayments.

How the intent standard of the law does not require “specific intent” but can be satisfied with a lesser showing of intent, like “reckless disregard” for the law.

How certain hurdles are embedded on the statute that can make success in these cases difficult to predict, like:  the first to file requirement, the public disclosure bar, the Rule 9(b) specificity pleading standards, and 4) the “government knowledge” and “materiality” issues.  And

How the federal FCA and 30 state FCAs inter-relate and how law enforcement coordinates on these matters.

The role of whistleblowers and their counsel in identifying these cases, bringing them to the government, and helping the government investigate and prosecute them is discussed throughout.  (Read about some of the Whistleblower Law Collaborative’s successes here.)

Tomorrow the group will delve into theories of liability under the False Claims Act, and recent ways in which the law has evolved.  Starting with the language from the False Claims Act, the question of what actually is “false or fraudulent” within the meaning of the law. Several recent developments, most particularly the Supreme Court’s decision in Escobar, are influencing how the False Claims Act is interpreted and implemented.  The seminar will explore how the Court’s discussion of “materiality” is impacting this practice area.

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