On May 10, Partner Jason Marcus will have the pleasure of participating on a panel at the First Annual False Claims Act Summit in Atlanta. He will be speaking to other attorneys about best practices when mediating False Claims Act cases. He will be joining lawyers from across the FCA spectrum as they share their insights on prosecuting, defending, investigating, and mediating False Claims Act cases in this one-day event.
Earlier this week, the authorities announced charges against 24 people across the U.S., including doctors accused of writing bogus prescriptions for “durable medical equipment" (DME), such as unneeded back, shoulder, wrist, and knee braces. Others charged included owners of call centers, telemedicine firms, and medical equipment companies.
This is being called one of the largest health care fraud schemes investigated by the FBI and the U.S. Department of Health and Human Services Office of the Inspector General (HHS-OIG). According to allegations in court documents, some of the defendants obtained patients for the scheme by using an international call center that advertised to Medicare beneficiaries and “up-sold” the beneficiaries to get them to accept numerous “free or low-cost” DME braces, regardless of medical necessity. The international call center allegedly paid illegal kickbacks and bribes to telemedicine companies, doctors, or nurse practitioners, to obtain DME orders for these Medicare beneficiaries without ever even speaking to them. Finally, the orders were then sold to DME companies, who shipped out box after box of braces, fraudulently billed Medicare or other insurance programs for every item. People all over the country have been receiving boxes of braces they did not need or want. And often, they are responsible for a copayment on these items, for hundreds or even thousands of dollars! Collectively, the CEOs, COOs, executives, business owners and medical professionals involved in the conspiracy are accused of causing over $1 billion in loss to Medicare.
Thanks to the FBI, HHS-OIG, and the Department of Justice these criminals are facing indictments. But this is just the tip of the iceberg, as seniors all over the country are receiving unrequested and unnecessary DME from hundreds of providers, on orders written by hundreds of medical practitioners who have never interacted with the patients. Bracker & Marcus LLC has experience with these types of matters. If you or a loved one have received DME that you did not ask for and do not need, contact us for help.
The Supreme Court engaged in oral argument this week over an issue of the False Claims Act: how two separate statute-of-limitations provisions apply to False Claims Act actions when the federal government has not intervened in the relator’s qui tam suit.
Cochise Consultancy Inc. v. United States, ex rel. Hunt stems from a more recent period of U.S. military history — the deployment of U.S. forces in Afghanistan and Iraq. Whistleblower Billy Joe Hunt alleges that Cochise Consultancy and another defense contractor defrauded the federal government in a contract to clean up munitions left behind by Iraqi forces.
The law’s original statute of limitations requires lawsuits to be filed within six years of the alleged fraud. In 1986, Congress added a second statute of limitations, Section 3731(b)(2), which permits suits up to three years after “the official of the United States charged with responsibility to act in the circumstances” learns the “facts material to the right of action,” but not more than 10 years after the alleged fraud. Both statutes of limitations apply to a “civil action under section 3730,” and “whichever occurs last” controls the case.
Hunt’s FCA suit was filed in 2013, more than six years after the alleged fraud, which occurred in 2006 and 2007. Hunt argues that his case qualifies for Section 3731(b)(2)’s alternative statute of limitations because he filed suit less than three years after the relevant “official of the United States” learned of the alleged fraud in 2010. The defendants argue that a relator only receives the benefit of the “three year” rule if the Government intervenes.
If the federal government had intervened in Hunt’s suit, the alternative statute of limitations plainly would have applied. But the government did not intervene. The district court dismissed the suit as untimely, but the U.S. Court of Appeals for the 11th Circuit reversed, taking a position different from conflicting views in several other circuits. The 11th Circuit held that relators can invoke Section 3731(b)(2) in suits in which the United States is not a party and that Section 3731(b)(2)’s three-year limitations period does not begin until the government learns of the alleged fraud, regardless of when the relator discovers it.
The Supreme Court will now deliberate and issue a written opinion (hopefully) settling this question once and for all.
The Department of Justice has recently announced its year end statistics for False Claims Act cases and the results are exciting!
-Nearly three billion dollars recovered (more than $2.8 billion) in settlements and judgments. And this does not consider additional money returned to state Medicaid programs. Of the $2.8 billion, $2.1 billion was attributable to qui tam cases. (The Government can bring a False Claims Act case without having a relator.)
-About $2.5 billion of that money – about 53% – came from healthcare-related matters, i.e., fraud on the Medicare, Medicaid, Tricare, and other government-funded healthcare programs. This includes the $84.5 million settlement that our firm had with a Detroit-based hospital. Pretty exciting to think that one of our cases was responsible for about 4% of all qui tam recoveries!
-Whistleblowers filed 645 qui tam suits in fiscal year 2018.
-Relators’ shares awarded during the fiscal year totaled $301.7 million, with $32.6 million in shares paid in declined cases.
-The number of lawsuits filed under the qui tam provisions of the Act has grown significantly since 1986, with 645 qui tam suits filed this past year – an average of more than 12 new cases every week.
“Whistleblowers have played a vital role in unmasking fraudulent schemes that might otherwise evade detection,” said Assistant Attorney General Jody Hunt. “The taxpayers owe a debt of gratitude to those who often put much on the line to expose such schemes.”
You can find the full statistics here.
Bracker & Marcus LLC is proud to announce that partner Julie Bracker has been selected as a Super Lawyer for the third year in a row, and partner Jason Marcus has been selected as a Rising Star for the fourth year in a row, by Super Lawyers Magazine for the state of Georgia. We are humbled and thankful to our peers for this recognition.
Each year, no more than 5 percent of the lawyers in the state are selected by the publication's research team to receive the honor of being named a Super Lawyer. No more than 2.5 percent of the lawyers in the state are named to its list of Rising Stars.
At Bracker & Marcus LLC, we represent whistleblowers in False Claims Act (or qui tam) lawsuits. The FCA is a complex statute - not one that can easily be picked up just from a casual review of the statute itself. Don't fall into the trap of launching your case without a super lawyer on your side. Julie and Jason are ready to assist you, starting with evaluating whether your situation needs to be brought to the attention of the Government, and if so, how. If you are aware of any fraud, waste, or abuse of government money, contact us.