False Claims Act

False Claims Act / en Sat, 26 Apr 2025 16:27:52 -0500 Fri, 16 Jun 23 14:40:40 -0500 As urged by AHA, Supreme Court rules government can dismiss FCA case over relator’s objection /news/headline/2023-06-16-urged-aha-supreme-court-rules-government-can-dismiss-fca-case-over-relators-objection When someone known as a “relator” brings a False Claims Act lawsuit on behalf of another party, the federal government may seek to dismiss the FCA action over the relator’s objection, so long as it intervened sometime during or after the litigation, the Supreme Court <a href="https://www.supremecourt.gov/opinions/22pdf/21-1052_fd9g.pdf">ruled</a>&nbsp;June 16. In a <a href="/amicus-brief/2022-10-24-amicus-brief-aha-others-file-brief-supreme-court-false-claims-act-case">friend-of-the-court brief</a>, AHA, joined by the U.S. Chamber of Commerce and American Health Care Association, had urged the court to affirm the government’s authority to dismiss an FCA lawsuit after declining to intervene in the case. Fri, 16 Jun 2023 14:40:40 -0500 False Claims Act AHA, AHIP urge Supreme Court to reject government’s interpretation of FCA /news/headline/2023-03-28-aha-ahip-urge-supreme-court-reject-governments-interpretation-fca The AHA and AHIP today filed a <a href="/amicus-brief/2023-03-28-aha-ahip-amicus-brief-false-claims-act-case">friend-of-the-court brief</a>&nbsp;in a False Claims Act case before the U.S. Supreme Court, arguing that the federal government’s erroneous construction and expansion of the FCA threatens the legitimate business activities of every government contractor, hospital, health care provider, health insurance provider and grant recipient in the nation.&nbsp; In a separate <a href="/press-releases/2023-03-28-aha-and-ahip-file-joint-amicus-brief">statement</a>, the organizations said, “While AHA and AHIP may not always share the same opinion on matters of litigation and policy, we agree that the current regulatory landscape and construction of the False Claims Act (FCA) creates an untenable situation for health care providers and health insurance providers. “If the government’s argument is accepted, our members will be forced to spend more on litigation and less on patient care. “As we explain in our brief: ‘Medicare and Medicaid are vital public health programs that can operate only with the participation of private parties like our members, but participation in these programs also entails navigating some of the most complex statutory, regulatory, and sub-regulatory requirements in existence.’&nbsp; “For that reason, the United States’ argument in this case causes us great concern. The government would impose criminal or civil FCA liability even though it admits that it cannot ‘feasibly address in advance every potential ambiguity’ in its thousands of statutes of regulations. The rule it proposes would create a Wild West of ramifications for any well-intentioned and legitimate hospital or insurance provider that seeks to serve Americans in partnership with the government.&nbsp; “We urge the Supreme Court to adopt an interpretation of the FCA that does not undermine the ability of our members to ensure that Americans have access to high-quality, affordable health care.”&nbsp; Tue, 28 Mar 2023 15:31:36 -0500 False Claims Act AHA and AHIP File Joint Amicus Brief /press-releases/2023-03-28-aha-and-ahip-file-joint-amicus-brief Washington, D.C. – (March 28, 2023) – Today, the �� Association (AHA) and AHIP filed a <a href="https://www.ahip.org/resources/ahip-supervalu-amicus-brief">joint amicus brief</a> in United States v. Supervalu Inc. v. Safeway Inc. In the brief, the organizations argue that the federal government’s “erroneous construction and expansion of the FCA [False Claims Act] threatens the legitimate business activities of every government contractor, hospital, healthcare provider, health insurance provider, and grant recipient in the nation,” and would “ultimately divert resources away from the primary missions of AHA’s and AHIP’s members: caring for patients, reducing the cost of care, and ensuring a healthy citizenry.” Together, the organizations issued this statement:&nbsp; <div> “While AHA and AHIP may not always share the same opinion on matters of litigation and policy, we agree that the current regulatory landscape and construction of the False Claims Act (FCA) creates an untenable situation for health care providers and health insurance providers. If the government’s argument is accepted, our members will be forced to spend more on litigation and less on patient care. “As we explain in our brief: ‘Medicare and Medicaid are vital public health programs that can operate only with the participation of private parties like our members, but participation in these programs also entails navigating some of the most complex statutory, regulatory, and sub-regulatory requirements in existence.’ “For that reason, the United States’ argument in this case causes us great concern.&nbsp;The government would impose criminal or civil FCA liability even though it admits that it cannot ‘feasibly address in advance every potential ambiguity’ in its thousands of statutes of regulations.&nbsp;The rule it proposes would create a Wild West of ramifications for any well-intentioned and legitimate hospital or insurance provider that seeks to serve Americans in partnership with the government. “We urge the Supreme Court to adopt an interpretation of the FCA that does not undermine the ability of our members to ensure that Americans have access to high-quality, affordable health care.”&nbsp; </div> <a href="https://www.ahip.org/resources/ahip-supervalu-amicus-brief">Read the brief.</a> &nbsp; ### &nbsp; About the �� Association (AHA) The AHA is a not-for-profit association of health care provider organizations and individuals that are committed to the health improvement of their communities. The AHA advocates on behalf of our nearly 5,000 member hospitals, health systems and other health care organizations, our clinician partners – including more than 270,000 affiliated physicians, 2 million nurses and other caregivers – and the 43,000 health care leaders who belong to our professional membership groups. Founded in 1898, the AHA provides insight and education for health care leaders and is a source of information on health care issues and trends. For more information, visit the AHA website at <a href="https://nam11.safelinks.protection.outlook.com/?url=https%3A%2F%2Flink.mediaoutreach.meltwater.com%2Fls%2Fclick%3Fupn%3DOYJSCMTyBhNCCTfI0zdwszOYn3sJE-2FXqs5pFQbQToVu1czeS7DyxR-2FigHWVFiRY4Oo6oAgJXLD947TA-2BGEZyx-2BxS9RWLtOdbYWabxrPKeek3hpLaspW6Wzj14VYHfKuQxMOL1Y6zxRWSqUMWPMMDt5-2BXbX0ZZgDRfGsqfgfWKSH0IZ2ahHE8JwoBML0hJCL1rkpzzqZN6kpgrWLcxKAeABE0DZtDNwNveE4bEnWP1EOtc3-2FBltIeM4QGVfGIOVhQ-2FR-2B2No22ISmLtROPSaJ1eVroitlug7ChwtLqDXzZQ5FANDoBjdBPJaERfHuSfF8HMaKVXE7z-2FvtZHU5iHELQCxN9-2BC4yUOCssGyu2evS-2B9WVbTuwZP8eibalbq8ee7CkuJyepfu9zCvvTaxgcmMlcxFtHHMvvjFvHFDwBANXzK57Gx0NJquX-2B340W0RMcn3-2BayVp1IgdeFS-2Bzr4I-2FdVN0ODaqajmm6QMIPcJFHrQ0UxJBnS7nvOwc7NeR1zmykXmarAD5EpGCcC1gNiFBLytUjIGCbpZqti9DP-2FHwqQF6VkxtqKWLplrqOWpjm6vbEzbT64d0fQS6jN-2FgMvDH3sZn5cYPlAejxCR75giiF5LQGN34x1DEFRgf0miXS4IrVpfmS-2F0IuxPsjekM5250MJ37DP336-2FMuUf66azD8x3SoLrFhW5ee78G92LKs2rOuCj8Qfft1AanDk6LIp4FEEGLf6GTPIP7IczO1xGCWCxttphIIVoQMU6PdRpK6o-2BvFE-2B2LFrbOZT7S3GazaFW6zNYnitYUT-2BrRtosP86f6ZSMl-2F5Mk3TknnOZA6xCeawLhGW2kLTpsRNeRmH2vOf2IbgmCJ3SwBsWW9bu3zXvONY6SgdwmrCjU0Clnjgjx-2BgzUgCC0GRkyH5ZlL2UnXht7wNDQYN4TyXDuVxqRevWYfX9Q5rm298F4A5W-2BIV3OImc-2FxKo-2FbWOiMewzAEJfRtb1HyOWPeYj8JkU1q7d84MZmsFrjBHHbSZ2FANSmPBH2Hrxtz8hI7Cc5RysTC9cIibvgs3ThSP4to-2F0-2F3ja1ZB6OSTJAC-2Fv77Rc6wIabLezTfHlaCCD2jvRpyV1rojdzZvmPaNhL7DKrWbmVLcNvSmFjPHA9V47xMiyNSMOAFTCydPz2wWMhmWy7H-2FL47AFEDegWPsSqGE10c-2FaNrUR-2FgLrq0-2Fa9bBLcsaRzwDxyENqUowgts4bmofR7G74-2FCJ1MelBwYVKTslg9nBSAopDCkcN9N0pwfLR0CVfY2OTSFn2RAUwb9xwmHZKvgGE5-2BTPph0Pdn7QgQ-2FOvQa0FjE3ny6Jm3moYsEL-2FzOIja7iRRKtvKErmDPede0UT2UzWnNdtXx8OSyWwj-2F1DXjLieE9KOHLhuUSxyZ45eR7o-2B-2B6ZHcbrCTHU-2FGz6IL0VUqPxih3zQM8y33qxgr9K9BsJpkG1rl1uluB7nrhq2nVjw6Lp-2FoattTyL2rP0R-2FUtADNu7WGd5iz8HODTCLcN9u2XYPMGFiO8kX-2F-2BYxNBg5yPtmcuy7fb2OsQ2yUyUPhknMKjchjKzTeDPrEqFo3gBTVTx2uwFLu8iK27UZEyYTpd3fkSlKQOVAV-2Buu6OAe7H1wEDso-2FL9uvc4kH-2Fm-2FjYspa9h0dv1sSOVVJU75xJsZzn1SNhYQgTGXTz0mx8qPffY8z3MOq7w5BP-2Bln0BdXQD-2FaJQkZ03MUHg5rXTGgqRXOucCE7nFGbH0faS-2BZNJZcs6xNv5YrCEMp9YBLqKCVVGOJiOB-2FlsyAun1MO3aoRs6QzjAhsEljWh1ZhSXdQkqYO6fY7abvMOW-2FjNPyonngDLig0p-2BmEmQZLWE4gII0aEFE-2BxYlf2j5n">www.aha.org</a>. &nbsp; About AHIP AHIP is the national association whose members provide health care coverage, services, and solutions to hundreds of millions of Americans every day. We are committed to market-based solutions and public-private partnerships that make health care better and coverage more affordable and accessible for everyone. Visit&nbsp;<a href="http://www.ahip.org/" target="_blank">www.ahip.org</a>&nbsp;to learn how working together, we are Guiding Greater Health. Tue, 28 Mar 2023 15:27:46 -0500 False Claims Act AHA, AHIP Amicus Brief in False Claims Act Case /amicus-brief/2023-03-28-aha-ahip-amicus-brief-false-claims-act-case Nos. 21-1326 and 22-111 IN THE Supreme Court of the United States UNITED STATES, EX REL. TRACY SCHUTTE, ET AL., &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;Petitioners, &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;v. &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; SUPERVALU INC., ET AL., &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;Respondents.&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; UNITED STATES, EX REL. THOMAS PROCTOR, &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;Petitioner, &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;v. &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;SAFEWAY, INC.,&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;Respondent. &nbsp; On Writs of Certiorari To The United States Court of&nbsp; Appeals for the Seventh Circuit BRIEF OF AMERICAN HOSPITAL ASSOCIATION AND AMERICA’S HEALTH INSURANCE PLANS AS AMICI CURIAE IN SUPPORT OF RESPONDENTS &nbsp; <table border="0" cellpadding="1" cellspacing="1"> <tbody> <tr> <td> Madhu Pocha O’MELVENY &amp; MYERS LLP 1999 Avenue of the Stars Los Angeles, CA 90067 (310) 553-6700 &nbsp; Anton Metlitsky O’MELVENY &amp; MYERS LLP 7 Times Square New York, N.Y. 10036 (212) 326-2000 </td> <td> Michael R. Dreeben Counsel of Record Amanda M. Santella Jenya Godina Danielle Siegel O’MELVENY &amp; MYERS LLP 1625 Eye Street, N.W. Washington, D.C. 20006 (202) 383-5300 mdreeben@omm.com &nbsp; </td> </tr> </tbody> </table> Attorneys for Amici Curiae View the detailed brief below. &nbsp; Tue, 28 Mar 2023 15:18:20 -0500 False Claims Act AHA and four state hospital associations urge appeals court to affirm dismissal of FCA claims against hospital /news/headline/2022-12-06-aha-and-four-state-hospital-associations-urge-appeals-court-affirm-dismissal-fca-claims-against The 6th Circuit Court of Appeals should affirm a district court’s decision to dismiss a meritless lawsuit that “sought to turn one doctor’s disappointment in not being hired by a hospital as an employed physician into an [False Claims Act] suit for Medicare fraud,” AHA and the four state hospital associations in the circuit said in a <a href="/amicus-brief/2022-12-05-aha-hospital-associations-urge-appeals-court-affirm-dismissal-fca-claims-against-hospital">friend-of-the-court brief</a>&nbsp;filed yesterday.&nbsp; &nbsp; “Relaxing the standards of causation and remuneration required under the Anti-Kickback Statute (‘AKS’) and False Claims Act (‘FCA’), as Relators ask, would embolden the relators’ bar to assert more meritless claims based on decisions that hospitals and their governing boards must make every day in managing their finances and operations,” the hospital associations wrote. “The consequence of overturning the district court’s well-reasoned opinion would be to vastly expand hospitals’ exposure to FCA suits, which are tremendously expensive to defend throughout a government investigation and litigation even when the suit is meritless.”&nbsp; &nbsp; The Michigan Health &amp; Hospital Association, Kentucky Hospital Association, Ohio Hospital Association and Tennessee Hospital Association joined AHA in the brief.&nbsp; Tue, 06 Dec 2022 15:20:37 -0600 False Claims Act AHA, Hospital Associations Urge Appeals Court to Affirm Dismissal of FCA Claims Against Hospital /amicus-brief/2022-12-05-aha-hospital-associations-urge-appeals-court-affirm-dismissal-fca-claims-against-hospital In the United States Court of Appeals for the Sixth Circuit _____________________ SHANNON MARTIN, M.D., Relator, ex rel. UNITED STATES OF AMERICA; DOUGLAS MARTIN, Relator, ex rel. UNITED STATES OF AMERICA, &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;Plaintiffs-Appellants, v. DARREN HATHAWAY,M.D.; SOUTH MICHIGAN OPHTHALMOLOGY; and ELLA E. M. BROWN CHARITABLE CIRCLE, d/b/a Oaklawn Hospital, &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;Defendants-Appellees. &nbsp; On Appeal from the United States District Court for the Western District of Michigan, Southern Division Case No. 1:19-cv-915 Honorable Jane M. Beckering &nbsp; BRIEF OF AMICI CURIAE AMERICAN HOSPITAL ASSOCIATION, MICHIGAN HEALTH &amp; HOSPITAL ASSOCIATION, KENTUCKY HOSPITAL ASSOCIATION, OHIO HOSPITAL ASSOCIATION, AND TENNESSEE HOSPITAL ASSOCIATION IN SUPPORT OF DEFENDANTS-APPELLEES AND AFFIRMANCE __________________________________________________________________ &nbsp; <table align="center" border="0" cellpadding="1" cellspacing="1"> <tbody> <tr> <td>CAITLYN A.MANCUSO HOGAN LOVELLS US LLP 1735 Market Street, 23rd Floor Philadelphia, PA 19103 (267) 675-4600 kate.mancuso@hoganlovells.com &nbsp;</td> <td>JESSICA L. ELLSWORTH JONATHAN L. DIESENHAUS HOGAN LOVELLS US LLP 555 13th Street NW Washington, D.C. 20004 (202) 637-5600 jessica.ellsworth@hoganlovells.com jonathan.diesenhaus@hoganlovells.com &nbsp;</td> </tr> </tbody> </table> &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Dated: December 5, 2022&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; Counsel for Amici Curiae &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; View detailed brief below.&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp; Mon, 05 Dec 2022 16:09:47 -0600 False Claims Act AHA, others file brief in Supreme Court False Claims Act case /news/headline/2022-10-24-aha-others-file-brief-supreme-court-false-claims-act-case The U.S. Supreme Court should affirm the government’s authority to dismiss a False Claims Act lawsuit after declining to intervene in the case, the AHA, U.S. Chamber of Commerce and American Health Care Association said in a <a href="/amicus-brief/2022-10-24-amicus-brief-aha-others-file-brief-supreme-court-false-claims-act-case">friend-of-the-court brief</a>&nbsp;filed today.&nbsp; “When the government investigates the allegations in a qui tam action and concludes that they lack legal or factual merit, the government serves the public interest by dismissing that action,” the brief states, noting the enormous number of meritless qui tam cases that clog the federal courts at enormous cost. Health care providers alone spend billions of dollars each year dealing with False Claims Act litigation, the brief notes, making participation in government health care programs a high-risk endeavor. “Validating the government’s discretion to dismiss False Claims Act cases brought in its name is good policy, even apart from being constitutionally required.” Mon, 24 Oct 2022 16:03:33 -0500 False Claims Act Amicus Brief: AHA, Others File Brief in Supreme Court False Claims Act Case /amicus-brief/2022-10-24-amicus-brief-aha-others-file-brief-supreme-court-false-claims-act-case In the Supreme Court of the United States ________________ UNITED STATES OF AMERICA, ex rel. JESSE POLANSKY, M.D., M.P.H., Petitioner, v. EXECUTIVE HEALTH RESOURCES, INC., et al., Respondents. ________________ On Writ of Certiorari to the United States Court of Appeals for the Third Circuit ________________ BRIEF FOR THE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, THE AMERICAN HEALTH CARE ASSOCIATION, AND THE AMERICAN HOSPITAL ASSOCIATION AS AMICI CURIAE IN SUPPORT OF RESPONDENTS ________________ &nbsp; <table align="center" border="0" cellpadding="1" cellspacing="1"> <tbody> <tr> <td>Tara S. Morrissey Andrew R. Varcoe Jordan L. Von Bokern U.S. CHAMBER LITIGATION CENTER 1615 H Street NW Washington, DC 20062 Counsel for the Chamber of Commerce of the United States of America</td> <td>Jeffrey S. Bucholtz Counsel of Record Jeremy M. Bylund KING &amp; SPALDING LLP 1700 Pennsylvania Ave. NW Washington, DC 20006 (202) 626-2907 jbucholtz@kslaw.com Counsel for Amici Curiae &nbsp;</td> </tr> </tbody> </table> October 24, 2022 Mon, 24 Oct 2022 15:52:19 -0500 False Claims Act AHA to Department of Justice Re: False Claims Act investigations /lettercomment/2022-05-19-aha-department-justice-re-false-claims-act-investigations May 19, 2022 The Honorable Brian M. Boynton Acting Assistant Attorney General, Civil Division Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20044 Dear Acting Assistant Attorney General Boynton: On behalf of our nearly 5,000 member hospitals, health systems and other health care organizations, our clinician partners — including more than 270,000 affiliated physicians, 2 million nurses and other caregivers — and the 43,000 health care leaders who belong to our professional membership groups, the �� Association (AHA) urges you to establish a task force to conduct False Claims Act investigations into commercial health insurance companies that are found to routinely deny patients access to services and deny payments to health care providers. Earlier this month, the Department of Health and Human Services’ Office of Inspector General (HHS-OIG) released an alarming report entitled “Some Medicare Advantage Organization Denials of Prior Authorization Requests Raise Concerns About Beneficiary Access to Medically Necessary Care.”1 As you know, the Medicare Advantage program is designed to cover the same services as original Medicare, and by law, Medicare Advantage Organizations (MAOs) may not impose additional clinical criteria that are “more restrictive than original Medicare’s national and local coverage policies.”2 HHS-OIG found that some of America’s largest MAOs have been violating this basic legal obligation at a staggering rate. Using a random sample of denials from the one-week period of June 1−7, 2019, the report estimates the rate at which MAOs deny prior authorization and payment requests that met Medicare coverage rules. Specifically, HHS-OIG found that 13% of prior authorization denials and 18% of payment denials actually met Medicare coverage rules and should have been granted. In a program the size of Medicare Advantage — with 26.4 million beneficiaries, or 42% of the total Medicare population in 2021 — improper denials at this rate is unacceptable. Yet, as the report explained, because the government pays MAOs a roughly $1,000 per-beneficiary capitation rate, they have every incentive to deny services to patients or payments to providers in order to boost their own profits. As HHS-OIG’s report shows, this is exactly what certain MAOs have been doing — again and again. And in a $300-plus billion federal program, the losses to the public fisc are immense. While the numbers alone tell a distressing story, the report also describes the harrowing human impact of these MAOs’ behavior. Just consider the following few examples described in the report: <ul> <li>A 72-year old woman presented with a cancerous breast tumor. The MAO denied her breast reconstruction surgery, stating “that the service was not covered.”3 That decision was reversed only after the OIG requested data from the insurer.</li> <li>An MAO refused to admit a 67-year old patient to an inpatient rehabilitation facility, even though he presented with an “acute right-sided ischemic stroke and [was] seen at the emergency department with new onset slurred speech.”4 “The beneficiary had difficulty swallowing, was at significant risk of aspiration and fluid penetration, at high risk for pneumonia, and, therefore,” according to the Medicare Benefit Policy Manual, “should have been under the frequent supervision of a rehabilitation physician.”5</li> <li>An MAO refused to pay $150 a month for a hospital bed with rails, even though a 93-year-old patient had a history of epilepsy, early onset Alzheimer’s, rheumatoid arthritis, chronic back pain, knee and joint stiffness, and limited range of motion.6 HHS-OIG’s medical experts determined, however, that this bed request was medically necessary “due to the beneficiary’s chronic conditions and movement limitations.”7</li> </ul> These harmful denials all occurred in a single week. Imagine what else the Justice Department might find if it conducted a more far-reaching investigation? The HHS-OIG report offers several forward-looking recommendations to remedy this serious problem of improper denials. Those recommendations are sensible, and the AHA applauds them. But they are not enough. After all, as the report notes, HHS-OIG had identified similar problems with improper MAO denials in a September 2018 report, and as of March 2022, the Centers for Medicare &amp; Medicaid Services had not yet acted on all of HHS-OIG’s recommendations. It is time for the Department of Justice to exercise its False Claims Act authority to both punish those MAOs that have denied Medicare beneficiaries and their providers their rightful coverage and to deter future misdeeds. This problem has grown so large — and has lasted for so long — that only the prospect of civil and criminal penalties can adequately prevent the widespread fraud certain MAOs are perpetrating against sick and elderly patients across the country, as well as against the public fisc every time commercial insurers take $1,000 per beneficiary while denying medically-necessary services. When you first took office in early 2021, you gave remarks at the Federal Bar Association’s Annual Conference in which you highlighted the Civil Division’s False Claims Act priorities. Among those priorities, you listed “schemes that take advantage of elderly patients by providing them poor or unnecessary health care – or too often no care at all.”8 You also listed a variety of health care-related priorities, noting that “the Civil Division has increasingly been undertaking sophisticated analyses of Medicare data to uncover potential fraud schemes that have not been identified. Yet another important priority for the Department has been investigating and litigating a growing number of matters related to Medicare Part C, which is Medicare’s managed care program, whistleblower suits, as well as to help analyze and support the allegations that we do receive from such suits.”9 The fraud uncovered by HHS-OIG fall squarely within your priorities: Seniors are being regularly refused vital medical services, and the Department is well-equipped to use its sophisticated anti-fraud tools to go after this persistent misconduct by certain MAOs. This is why the Civil Division has indicated that “another important priority for the Department has been investigating and litigating a growing number of matters related to Medicare Part C, which is Medicare’s managed care program.”10 As the HHS-OIG report makes crystal clear, a more sustained Justice Department commitment is needed to fully tackle this problem. And it is time for the Civil Division to focus more directly on the commercial insurers who commit this fraud.11 The AHA therefore urges you to create a “Medicare Advantage Fraud Task Force” to investigate those MAOs that are failing to live up to the commitments they make to the federal government and the Medicare beneficiaries they have been entrusted to serve. Doing so will ensure that our oldest Americans get the care they&nbsp;need under Medicare Advantage, and commercial insurers can no longer take massive amounts of federal dollars while denying necessary services. The AHA looks forward to working with you on this important effort. Sincerely, /s/ Melinda Hatton General Counsel cc: Vanita Gupta, Associate Attorney General &nbsp; &nbsp; &nbsp; Michael Granston, Deputy Assistant Attorney General ___________ 1 It is available at https://oig.hhs.gov/oei/reports/OEI-09-18-00260.pdf. 2 CMS, Medicare Managed Care Manual, ch. 4, sec. 10.16. 3 See Appendix B, Example D385. 4 See Appendix B, Example D270. 5 Id. 6 See Appendix B, Example D232. 7 Id. 8 Acting Assistant Attorney General Brian M. Boynton Delivers Remarks at the Federal Bar Association Qui Tam Conference (Feb. 17, 2021), <a href="https://www.justice.gov/opa/speech/acting-assistant-attorney-general-brian-m-boynton-delivers-remarks-federal-bar" target="_blank">https://www.justice.gov/opa/speech/acting-assistant-attorney-general-brian-m-boynton-delivers-remarks-federal-bar</a> (emphasis added). 9 Id. 10 Remarks of Deputy Assistant Attorney General Michael D. Granston at the ABA Civil False Claims Act and Qui Tam Enforcement Institute (Dec. 2, 2020), <a href="https://www.justice.gov/opa/speech/remarks-deputy-assistant-attorney-general-michael-d-granston-aba-civil-false-claims-act" target="_blank">https://www.justice.gov/opa/speech/remarks-deputy-assistant-attorney-general-michael-d-granston-aba-civil-false-claims-act</a>. 11 John C. Richter, Amy Boring, and Christina Kung, Top False Claims Act Developments (Aug. 12, 2021), <a href="https://www.chamberlitigation.com/FalseClaimsAct3" target="_blank">https://www.chamberlitigation.com/FalseClaimsAct3</a> (“[T]here have not been many FCA cases against Medicare Part C insurers historically, as compared with other entities in the healthcare space.”). Thu, 19 May 2022 13:23:38 -0500 False Claims Act AHA, HAP Amicus Brief on Concurrent and Overlapping Surgeries, November 1, 2021 /amicus-brief/2021-11-02-aha-hap-amicus-brief-concurrent-and-overlapping-surgeries-november-1-2021 <h2 class="text-align-center">Introduction</h2> Defendants have persuasively explained why the Complaint fails to state a claim as a matter of law. Amici do not seek to repeat those compelling legal arguments. Instead, amici can best assist the Court in another way: by providing critical information, based primarily on documents incorporated in the Complaint, about the history, practice, and regulation of concurrent and overlapping surgeries during the time period relevant to this case. The practice first came to widespread public attention with publication of a Boston Globe article in October 2015. It spurred a number of inquiries, and was certainly a catalyst for the American College of Surgeons (ACS) to update its guidance on the practice, the Senate Finance Committee to issue a report on the subject, and hospitals across the country to review and update their internal policies governing those surgeries. But one key stakeholder, the Centers for Medicare &amp; Medicaid Services (CMS), did not change its preexisting billing guidelines because those guidelines already properly deferred to the medical expertise of individual surgeons and their teams. Then and now, CMS’s billing guidelines correctly recognize that surgical teams perform a wide variety of medical procedures under widely differing circumstances, and so the guidelines appropriately defer to surgeons’ knowledge and on-the-ground demands. To that end, CMS’s Medicare Claims Processing Manual explicitly allows doctors to determine what portions of particular surgeries are “critical,” and permits overlapping surgeries to occur so long as a qualified backup physician is available. This has allowed hospitals to develop policies for concurrent and overlapping surgeries that are consistent with ACS guidance, and best suited to their patients’ individual circumstances and their surgical teams’ own professional experience. Despite the flexibility and deference contained in CMS’s Manual, the United States Attorney’s Office now seeks to impose its own view of proper medicine over that of a world-renowned hospital and its surgical staff. But that is not the job of the Department of Justice. Nor&nbsp;is the function of the False Claims Act, which the Supreme Court has repeatedly explained “is not ‘an all-purpose antifraud statute,’ or a vehicle for punishing garden-variety breaches of contract or regulatory violations.” Universal Health Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 2003 (2016) (quoting Allison Engine Co., Inc. v. U.S. ex rel. Sanders, 553 U.S. 662, 672 (2008)). At the very least, it is CMS’s responsibility in the first instance as the expert agency that actually reimburses hospitals for medical services to develop meaningful guidance for concurrent and overlapping surgeries, if that guidance is needed. Only then, and only if CMS’s guidance is not adhered to, are False Claims Act lawsuits appropriate. But CMS has not developed such guidance, and that fact alone fatally undermines this Complaint. Simply put, DOJ-driven False Claims Act lawsuits cannot be used to regulate concurrent and overlapping surgeries in CMS’s stead. More elementally, neither the Department of Justice nor the False Claims Act should be allowed to short-circuit the ongoing medical discussion about how to best ensure the efficacy and safety of overlapping surgeries. In light of the ACS’ updated surgical guidance, hospitals revised their policies on the subject and, in so doing, demonstrated that they are capable of effectively managing overlapping surgeries consistent with their own unique medical needs. Indeed, studies discussed in Section II below—including the Senate Finance Committee’s report, which is incorporated into the Complaint in paragraph 134—recognize that hospitals have taken varying approaches to overlapping surgeries since 2015. But contrary to implications in the government’s Complaint, CMS itself has stated that patients are not endangered by the practice. See Staff of United States Senate Finance Committee, Concurrent and Overlapping Surgeries: Additional Measures Warranted 4 (Dec. 6, 2016), https://www.finance.senate.gov/imo/media/doc/Concurrent%20Surgeries%20Report%20Final.pdf&nbsp;(“SFC Staff Report”) (“Both CMS and Joint Commission told Committee staff that in conducting oversight activities, they have not noticed the practices of concurrent or overlapping surgeries as contributing in any particular way to patient harm.”). In fact, experts have found that overlapping surgeries are not just safe, but they allow more patients to receive lifesaving care when it is needed. As the chair of surgical quality at the Mayo Clinic’s Rochester campus put it: “Our data shows that overlapping surgery as practiced here is safe.… We think [overlapping surgery] provides value to our patients because it allows more patients timely access to surgery and care by expert teams.’” Sharon Theimer, Study of thousands of operations finds overlapping surgeries are safe for Mayo Clinic patients, Mayo Clinic News Network (Dec. 1, 2016), https://newsnetwork.mayoclinic.org/discussion/study-of-thousands-of-operations-finds-overlapping-surgeries-are-safe-for-mayo-clinic-patients/. In the end, as the history below makes clear, this Court must not allow one United States Attorney’s office to dictate important medical decisions through the threat of civil and criminal False Claims Act liability for a surgical practice that CMS has not deemed harmful to patients. Accordingly, the Court should grant Defendants’ Motion to Dismiss. View the entire amicus brief below. Tue, 02 Nov 2021 10:00:51 -0500 False Claims Act