To Tape, or Not To Tape Debate Happening in Georgia

Recent Georgia gubernatorial candidate Casey Cagle’s career was halted due to a secret recording produced by failed candidate Clay Tippins. At the time, the recording was legal because in Georgia only one person in a conversation has to agree to be recorded.

Now Senate Rules Chairman, Jeff Mullis, wants the law changed to make such tapings illegal. Mullis’s bill would require all parties to give “prior consent” to being recorded.

It’s something that Georgia First Amendment Foundation President Richard T. Griffiths said would be “very bad for the public.” Not only would it have an impact on investigative journalism, it would keep people from being able to pursue legal action against people trying to commit fraud over the phone, Griffiths said.

Of course, there are pros and there are cons to recording conversations. Whistleblowers frequently come to us with recordings of conversations with managers and co-workers. Often, particularly when they sense they are about to be retaliated against, they turn on their phone recorders during important meetings or when called in to talk with HR. This can result in strong evidence of retaliation, but also of fraud, and can be vital evidence in a False Claims Act case. Or, if the employer feigns ignorance of the fraud and claims to be firing you for non-retaliatory reasons, it can be devastating to your case.

If you want to know our opinion on recordings, check out this previous blog post.

$50 Billion in Medicare Waste? That's an Understatement.

There is $50 billion a year wasted in the Medicare program. That’s a billion dollars a week.

At an April 11 town hall, presidential candidate Tim Ryan of Ohio made the above statement in response to a question about how he would stop the federal government from wasting taxpayer money. Politifact investigated his statement and found it to be “mostly true.”

Specifically, Politifact reviewed testimony from a GAO director of audit services, who noted $48.5 billion in improper payments by Medicare for fiscal year 2018. Politifact determined that Ryan’s statement was mostly true because approximately $7 billion of that amount consisted of underpayments, and so that money was hardly “wasted” - rather only $45 billion of overpayments were made in that year.

Still, this amount is far from accurate. First, Politifact correctly noted that this amount is only what was caught. As one expert stated, “the audit protocols that Health and Human Services uses to produce the estimates are weak, ‘so the actual levels of overall waste, or overpayments, are undoubtedly much higher than these government estimates.’” False Claims Act whistleblowers report fraudulent schemes in the hundreds of millions of dollars that slip by CMS auditors.

Second, the amounts likely do not include fraud resulting from violations of the Stark Law or Anti-Kickback Statute, which can result in overprescribing of drugs and services in exchange for kickbacks, or for providing services that are not medically necessary or reasonable. For example, Bracker & Marcus LLC recently settled an $84.5 million kickback scheme with a hospital group. Third, this statement does not include fraud on other government healthcare programs such as Medicaid, Tricare, or the VA.

If anything, Ryan understates the amount of fraud, waste, and abuse committed against Medicare, which is shocking when he is already talking about a fifty billion dollar annual problem.

Bracker & Marcus LLC is part of the solution. We represent whistleblowers in healthcare fraud cases and have helped to recover tens of millions of dollars for the Medicare program. If you are aware of Medicare fraud, please contact us today.

False Claims Act Summit in Atlanta

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.

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Feds Bust a $1.2 Billion Medicare DME Scam Targeting Seniors

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.

SCOTUS discusses statute-of-limitations question in False Claims Act cases

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.