The Department of Health and Human Services’ (HHS) Center for Medicare and Medicaid Services (CMS), is set to publish a final rule that will provide some much needed relief to healthcare providers from the burdens of the so-called 60-Day Overpayment Rule.  The final rule clarifies (1) the 60 day period for refunding overpayments is not triggered until both the fact and amount of an overpayment are known; (2) the standard for knowledge is not “actual knowledge,” but when the provider would have identified the overpayment had it exercised reasonable diligence; and (3) the manner in which the refund must be made.
Continue Reading CMS Clarifies 60 Day Overpayment Rule

The Department of Justice has issued its annual press release touting its False Claims Act recoveries from 2015. The government’s haul was substantial: just over $3.5 billion.  This is the fourth consecutive year that recoveries were at or above this level, but represents a significant decline from the government’s record $6.1 billion total recovered in 2014.
Continue Reading 2015: Another Big Year for FCA Recoveries

Setting the stage for what may be a far-reaching interpretation of the False Claims Act (FCA), the Supreme Court of the United States granted certiorari to resolve a circuit split over whether “implied certification” is a viable theory of liability under the FCA. Universal Health Servs., Inc. v. United States ex rel. Escobar, No. 15-7.  Unlike a typical false certification case—in which a person explicitly but falsely certifies compliance with a statute, regulation, or contract provision—an implied certification case does not require an express certification of compliance.  Instead, it merely requires failure to comply with a statutory, regulatory or contractual requirement that is condition of payment.
Continue Reading Supreme Implications: High Court to Decide Fate of “Implied False Certification” Theory

457 hospitals (or, expressed differently, nearly 10% of all of the hospitals in the United States) have recently agreed to settlements worth more than a quarter of a billion dollars arising out of an investigation into Medicare billings for allegedly unnecessary cardiac implants known as implantable cardioverter defibrillators, or ICDs. ICDs regulate heart rhythms and cost about $25,000 per device.  Whether Medicare covers ICD implants is dependent on the National Coverage Determination (“NCD”).  The NCD states that ICDs should not be implanted in patients who recently suffered a heart attack or heart bypass surgery or angioplasty, and has set waiting periods for the procedure of 40 days after a heart attack and 90 days after a bypass or angioplasty.
Continue Reading Hundreds of Hospitals Will Pay Over $250 Million in Nationwide FCA Settlement

The last Supreme Court term was a big one.  Most observers will remember it as the term that upheld Obamacare, established a constitutional right to same-sex marriage, and introduced the American lexicon to “jiggery-pokery.”  Those staying abreast of developments in the civil False Claims Act (FCA) jurisprudence, however, will remember the 2014 term for settling some uncertainty in regard to the FCA’s first-to-file bar and statute of limitations in Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter, 135 S.Ct. 1970, __ U.S. ___ (2015).  The full slip opinion can be found on the Supreme Court’s website, here; we previously covered the opinion, here.
Continue Reading What’s Next: The Future of False Claims Act Litigation After KBR v. U.S. ex rel. Carter

Under the “implied certification” theory of liability, a government contractor can violate the False Claims Act (“FCA”) by submitting a mere invoice for payment.  The theory is that the invoice’s submission impliedly certifies compliance with contract conditions.  If a contractor is not complying with material contract requirements and — despite the contractor’s noncompliance — submits an invoice for payment, then the Government or a relator might argue that the contractor has violated the FCA. 
Continue Reading The Fourth Circuit Strengthens the FCA’s Implied Certification Theory in Triple Canopy