by Nolan and Auerbach on January 31, 2013
Two former employees of the Momence Meadows Nursing Center (MMNC) filed a qui tam action against the nursing home pursuant to the False Claims Act. The relators claimed, among other things, that the care provided by MMNC was so substandard that it was worthless, thus triggering FCA liability. (DOJ filed a statement of interest backing this use of the FCA.)
MMNC filed a summary judgment motion, arguing that the relators’ claim for worthless services should be dismissed. The nursing home argued that it provided “substandard” services, which should be distinguished from not providing any services at all.
The court disagreed and determined that providing substandard services can sometimes blur the line into providing worthless services. With this decision, the court stressed that defendants cannot sidestep FCA liability by simply arguing that they provided some care, albeit woefully substandard.
More information for whistleblowers is located at the Nolan Auerbach website.
by Nolan and Auerbach on January 18, 2013
A sales manager at Takeda Pharmaceuticals brought a qui tam action against his employer under the False Claims Act. (United States ex rel. Nathan v. Takeda Pharmaceuticals America Inc., No. 11-2077 (4th Cir. 2013)).
The whistleblower claimed that his employer violated § 3729(a)(1)(A) of the Act by causing false claims to be presented to the government for payment.
However, to trigger liability under the Act, a claim for payment must have actually been submitted to the federal government. In dismissing the whistleblower’s suit, the Fourth Circuit determined that the whistleblower failed to point to any specific reimbursement claims submitted to the Government that related to the company’s alleged off-label marketing of its drugs.
The whistleblower said that Takeda was seeking reimbursement for the costs of prescriptions targeted at off-label use, which are typically not subject to government reimbursement. To prove his claim, the whistleblower utilized statistical evidence and made general allegations that Takeda engaged in a “scheme” to defraud the government. However, the whistleblower failed to point to even one specific reimbursement claim by Takeda.
The court stressed that while the whistleblower’s claim show that a false claim could have been filed, liability under the False Claims Act attaches only to false claims that were actually submitted to the government for reimbursement.
In ruling for Takeda, the court added that general allegations do not identify with particularity any claims that would trigger liability under the Act.
To learn more about whistleblowers and the False Claim Act, visit the Nolan Auerbach website.
by Nolan and Auerbach on January 8, 2013
Florida Agency for Health Care Administration and the Florida Attorney General just released the State’s annual Medicaid Fraud and Abuse Report, which reveals a solid return on investment for recovery efforts. Medicaid is a big issue in Florida – the fourth largest Medicaid program in the country, serving more than 3.3 million people.
Fighting Medicaid fraud makes good financial sense in the State. According to the report, for every $1 spent in fiscal year 2011- ’12 to prevent fraud and abuse or to recover Medicaid funds due to fraud and abuse, Florida gained $6.80.
While Medicaid’s process to terminate prescribing rights of providers who were prescribing suspicious amounts of pill-mill type drugs is going strong. The State recouped nearly $49.7 million, including $44.2 million in overpayments and $5 million in fines and sanctions. In addition, the Agency’s Bureau of Medicaid Program Integrity collected $74.2 million in Medicaid overpayments and the government’s Third Party Liability Unit recovered $148.1 million.
Recouping money from Medicaid fraud and abuse is clearly an important and much-needed money-making initiative for Florida as well as other states. With the strength of the qui tam provisions of the False Claims Act, the amount recovered should increase each year.
According to the report, citizens made the majority of Medicaid fraud complaints in FY 2011-’12, followed by Medicaid recipient and qui tam complaints.
More information for whistleblowers is located at the Nolan Auerbach website.
