The Downside of the Advice-of-Counsel Defense

Intent is a necessary element of a False Claims Act (FCA) violation.  If a defendant reasonably relied on advice of counsel in performing the actions at issue, the intent element is absent.  That’s the upside of the advice-of-counsel defense.  But there’s a downside, and a recent federal decision in a major …

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Hospital Claim Dismissed for Want of Redressability

The recent decision in Dignity v. Burwell is interesting for three reasons.  For one thing, it provides a reminder of the unfortunate fact that the acts (or inaction) of one party can adversely affect the fate of others—as when your dad punished all the kids for something only your stupid kid brother did. In …

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Medicare Plans Sue Auto Insurers for Illegal Cost Shifting

When Medicare beneficiaries are taken to the ER after an auto accident, they’re likely to have their Medicare cards with them, but not their auto policies.  This creates a problem for Medicare because Medicare is supposed to be a secondary payer, liable for medical bills only if no primary payer is responsible …

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New Medicare Fraud Defense: “My Mom Made Me Do It!”

Charged with 33 counts of Medicare fraud netting some $45 million in false claims, Richard Tinimbang invoked a novel defense: “My mom made me do it!” That, according to Law360, is the gist of the opening statement of Richard’s defense attorney on February 27.  The attorney described Richard’s mother, …

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Far-Fetched Whistleblower Claim of the Month

The hospital industry is accustomed to far-fetched whistleblower claims: allegations that a hospital knowingly submitted false or fraudulent Medicare or Medicaid claims or fired a whistleblower for trying to prevent such activity.  But in terms of far-fetched claims decided in January, whistleblower Jana Endicott …

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Medicare Appeal Proposal Falls Far Short of Court Mandate

For years the hospital industry has been in an uproar over the mountainous backlog of Medicare claim appeals.  Current estimates are that a whopping 650,000 claims are at the Administrative Law Judge level awaiting adjudication.  Worse yet, the backlog has been growing at a dizzying rate, with requests for ALJ …

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