Archive for May, 2011

Greene LLP Attorney Makes Presentation at ABA Health Care Fraud Conference on False Claims Act Changes

Tuesday, May 24th, 2011

This year’s American Bar Association Health Care Fraud Conference featured a panel entitled “False Claims Act Developments,” involving attorneys from all sides of False Claims Act litigation.  The panel drew attention to several recent developments in False Claims Act practice and procedure, including the 2009 Fraud Enforcement and Recovery Act (FERA), health care legislation in 2010, and recent litigation and settlements.  Greene LLP attorney Thomas M. Greene served as the representative of the relators’ bar, with an eye toward presenting how recent changes in the law will impact qui tam whistleblowers.

On the panel, Mr. Greene led discussions of particular consequence to current and potential whistleblowers, most of which related to developments with retaliation claims under the False Claims Act, and to the Patient Protection and Affordable Care Act.  With respect to anti-retaliation protections under “section (h)” of the False Claims Act, Greene discussed Congress’s wishes to extend protections to a wider variety of potential qui tam whistleblowers.  With ever more complicated contracting and subcontracting relationships among companies paid by the government, Congress extended the Act’s robust protections beyond persons in normal employer-employee relationships.  Thanks to amendments by FERA and the 2010 Dodd-Frank Act, persons are protected from retaliation for attempting to stop fraud on the government or for pursing qui tam complaints on the government’s behalf, even if they are merely agents or independent contractors of the company at issue.

With regard to health care legislation, Mr. Greene presented changes to the False Claims Act’s public disclosure bar, which is designed to prevent private litigants from pursuing qui tam actions if their information is based on information that is already within the public domain.  In most respects, the PPACA changes to the public disclosure bar make it easier for qui tam relators to survive such challenges.  Mr. Greene also discussed how PPACA-instituted health insurance exchanges will impact False Claims Act procedure, particularly in light of a series of significant settlements within the health care industry.

The panel was moderated by Robert Patten, Managing Attorney at the Massachusetts Office of the Attorney General’s Medicaid Fraud Division.  In addition to soliciting input from the panel, Mr. Patten discussed the state False Claims Act recertification process – in order to receive preferential treatment when settlement proceeds are received by the government, states must have a False Claims Act as powerful as the federal version, and the number of recent changes to the federal law have prompted changes at the state level.  Representing the government, Mr. Patten was joined on the panel by Michael Granston, Assistant Director of the Commercial Litigation Branch, Civil Division, at the U.S. Department of Justice.  Mr. Granston discussed changes to the Anti-Kickback Statute, the False Claims Act’s conspiracy provision, the government’s enhanced authority to issue Civil Investigative Demands, and the retroactivity of recent legislation.

Representing the defense bar were Kirsten V. Mayer of Ropes & Gray in Boston and John T. Boese of Fried Frank in New York.  Ms. Mayer addressed emerging issues in false certification liability, including courts’ acceptance of implied certification theories of liability, and also discussed the status of Freedom of Information Act reports as public disclosures.  Mr. Boese presented on retention of overpayments as a basis for False Claims Act liability and differing interpretations of who may be an “original source,” a status which functions as an exception to the public disclosure bar.

Thomas M. Greene Interviewed on False Claims Act Cases, Experience as Whistleblower Lawyer

Thursday, May 5th, 2011

On May 4, 2011, Suffolk University published an interview with Greene LLP Managing Partner Thomas M. Greene.  In the podcast, which is available on Legal Talk Network, Mr. Greene was interviewed by Suffolk University Law School Professor Linda Sandstrom Simard about recent changes to False Claims Act practice in qui tam cases.  Mr. Greene explained how the District of Massachusetts has become the epicenter for False Claims Act litigation, particularly since Greene’s 2004 settlement of Franklin v. Parke-Davis for $152 million. The Franklin case, which centered on Parke-Davis and Pfizer’s marketing practices of the drug Neurontin, set off a series of off-label promotion cases against pharmaceutical companies – contributing to the reputation of Massachusetts as a leader in health care fraud cases.

False Claims Act litigation has been a core practice area for Greene LLP since the firm’s inception.  Click here to learn more about the False Claims Act, recent changes, and how Mr. Greene started a career in False Claims Act litigation.

 

Greene LLP Settles with UnumProvident and Paul Revere Over Bad Faith Income Insurance Claim Denial

Monday, May 2nd, 2011

Last month, Greene LLP attorneys resolved a bad faith insurance case against Unum Life Insurance Company and subsidiary The Paul Revere Life Insurance Company.  The case alleged that Unum wrongfully denied claims made by a Greene LLP client under two income insurance policies purchased in the 1980s.  The settlement amount of $700,000 resolves all claims by Greene LLP’s client under M.G.L. c.93A and c.176D(3) and for breach of contract related to the income insurance policies.

Greene LLP’s client, a licensed social worker in private practice, was diagnosed with a mental illness several years after purchasing the income insurance policies.  As a result, he was unable to maintain his practice, triggering benefits under the two policies.  Due to the same mental illness, the Greene LLP client was unable to keep up with UnumProvident and Paul Revere’s onerous requirements to justify benefits.

In 2004, insurance regulators in Massachusetts, Maine and Tennessee, on behalf of themselves and other states and jurisdictions, conducted an investigation into the claim denial practices of Unum, Paul Revere, and Provident Life and Accident Insurance Company.  The regulators levied a $15 million fine after they found systematic and widespread “unfair claim settlement practices” by the companies, including failures to evaluate “the totality of the claimant’s medical condition.”  The regulators also found “a significant number of instances” in which an inappropriate burden had been placed on claimants to justify eligibility for benefits.

Greene LLP argued that both of these unfair practices played a role in a bad faith denial of its client’s claims for benefits.  By improperly shifting a burden to prove eligibility to the insured, Greene LLP attorneys argued, Unum and Paul Revere took advantage of someone who was especially ill-equipped to fight their practices – because of his mental illness, the very reason he suffered a loss of income in the first place.  “Unum’s claim denial practices were unreasonable,” said lead attorney Thomas M. Greene.  “Individuals like my client should not have to prove their eligibility for benefits by responding to mountains of paperwork, especially if mental illness makes it particularly difficult to do so.  That’s bad faith.”