The Difference between Expecting Referrals & Inducing Them

A new Fifth Circuit opinion explains the difference between offering a benefit in order to induce a Medicare referral and offering it in the expectation of a referral.  The difference is important because the former is a serious federal crime, while the latter is perfectly legal. Whistleblower Susan Ruscher …

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Whistleblower Can’t Use Discovery Info to Satisfy Rule 9(b)

Rule 9(b) requires a whistleblower alleging fraud to “state with particularity the circumstances constituting fraud.”  Tom Bingham provided the particularity, but his case was nevertheless dismissed because of the way he came by the information. Tom filed a qui tam action against HCA alleging that it …

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False Claims that Don’t Violate the False Claims Act

A recent Fourth Circuit decision answers this riddle, “How can a contractor knowingly submit a false claim to the government without violating the False Claims Act (FCA)?”  Give up?  The answer is blindingly obvious—once you’ve heard it. The answer is that a false claim doesn’t violate the FCA …

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7th Cir. Demands Objective Standards in Whistleblower Complaint

On September 1 the Seventh Circuit affirmed dismissal of three of a whistleblower’s four fraud allegations against a mental health clinic, ruling that the allegations were based on the whistleblower’s subjective judgment rather than objective standards. Rose Presser worked at Acacia Mental Health Clinic as …

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Strangest Regulatory Interpretation of the Month

The Massachusetts federal district court is hands-down winner of the August award for strangest regulatory interpretation of the month. The interpretation came in the context of denial of Omnicare’s summary judgment motion in a False Claims Act (FCA) action brought against it by three whistleblowers.   The …

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Whistleblower’s Claim Survives Dismissal and Death

The Energizer Bunny has nothing on the whistleblower claim of Robert Cunningham.  Here’s what’s happened since Robert files his qui tam action against Millennium Labs back in 2009: the government declined to intervene; seven more whistleblowers filed related actions against Millennium; the government …

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