From time to time a development in health law confirms the adage that truth is stranger than fiction. That’s why we hand out the You-Can’t-Make-this-Up Award for real life developments that seem to defy the imagination. This month’s award goes to the Centers for Medicare & Medicaid Services’ October …
Finally, Recovery of Attorney Fees for Government Overreach
September 21, 2017 Leave a Comment
There are two major, interrelated reasons why government contractors, including Medicare providers, are so afraid of the False Claims Act (FCA). One is the draconian nature of the liability: treble damages plus up to $21,916 in penalties per claim. That means, for example, a knowing overcharge of $5 on a single …
Who Says Ignorance of the Law Is No Excuse?
June 2, 2017 Leave a Comment
If you think that ignorance of the law is no excuse, take a look at the Eleventh Circuit’s opinion in US ex rel. Phalp v. Lincare Holdings. It leaves no doubt that in a False Claims Act case, ignorance can be a solid defense. Oxygen supply company Lincare was sued by two former salesmen for violating of the …
The Downside of the Advice-of-Counsel Defense
April 19, 2017 Leave a Comment
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 …
Hospital Claim Dismissed for Want of Redressability
April 17, 2017 Leave a Comment
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 …
Medicare Plans Sue Auto Insurers for Illegal Cost Shifting
April 6, 2017 Leave a Comment
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 …