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On Sept. 6, 2017, the Centers for Medicare and Medicaid Services (CMS) issued an advanced copy of guidance to state survey agency directors that is intended to clarify how to determine whether a hospital seeking Medicare certification, or going through a continuing certification survey, is “primarily engaged in providing inpatient services” under the Social Security…

A recent federal district court case raises significant issues regarding privilege that should be on the radar of any in-house or outside counsel conducting an internal investigation with the goal of producing a public report. As discussed in a recent Privilege Points, the investigation at issue was conducted for the Washington Metropolitan Area Transit…

The DOJ recently intervened in a lawsuit against Prime Healthcare Services, Inc., and its subsidiaries (“Prime”).  The lawsuit alleges that Prime submitted claims for medically unnecessary services and routinely pressured its staff to exaggerate Medicare beneficiaries illnesses in order to increase the number of inpatient admissions and billed for services as inpatient admissions that should…

The FCA’s implied certification theory is based on the concept that every time a payee submits a claim to the government it has impliedly certified compliance with all contractual, statutory, and regulatory obligations, and therefore, is entitled to payment. While the courts are currently divided on whether implied certification is a valid theory of liability, the courts that…

In United States ex rel. Bias v. Tangipahoa Parish School Bd., — F.3d —-, 2016 WL 906227 (5th Cir. 2016), the Fifth Circuit provided guidance on the scope of individuals with standing to bring an FCA retaliation claim under 31 U.S.C. §  3730(h).  In reversing the lower court’s dismissal, the circuit court explained that…

The False Claims Act’s “public disclosure bar” calls for dismissal of complaints by qui tam plaintiffs (or “relators”) whose allegations have already been publicly disclosed. The primary aim of the bar is preventing parasitic suits based on public information. Courts generally agree that disclosure to the government alone does not count as disclosure to the…