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