While Monty Hall (or for the current generation, Wayne Brady) was nowhere in sight, it was difficult not to think about the show “Let’s Make a Deal” while sitting in the audience at the American Bar Association’s 39th National Institute on White Collar Crime. During the Institute, one of the featured speakers, Deputy Attorney General Lisa Monaco, announced a new DOJ-led whistleblower rewards program.
“Incident to” billing is widely practiced, and its regulations are generally well-known. But one Arizona physician recently found himself pleading guilty in federal court on April 3, 2024, to a criminal healthcare fraud charge over improperly billing Medicare and private payors for healthcare services that failed to abide by the rules over “incident to” billing. This blog post explores how this lack of compliance resulted in such a serious criminal consequence.
We are proud to announce a much-needed addition to Husch Blackwell’s lineup of podcasts. Last week, we launched False Claims Act Insights, a new podcast devoted to exploring issues relating to False Claims Act (FCA) investigations and litigation. The show is hosted by Jonathan Porter—a partner in our firm’s White Collar, Internal
So, you’ve received a third-party subpoena. Now what? A third-party subpoena is the procedural mechanism that allows parties in litigation to obtain evidence from non-party individuals and/or entities. For federal cases, Federal Rule of Civil Procedure 45 governs this process. Rule 45 outlines specific procedures that litigants must follow to serve a subpoena seeking documents and/or testimony properly. The Rule also provides protections non-parties can use to alleviate their burden in producing responsive documents. Most states have their own rules that govern non-party discovery that often, but not always, mirror Rule 45.
On October 8, 2023, Governor Gavin Newsom signed Assembly Bill 1286 (AB 1286), a sweeping pharmacy measure with several components aimed at promoting patient safety. Chief among AB 1286’s mandates is a new law requiring that community pharmacies report outpatient medication errors to the California Board of Pharmacy. But beyond the mandatory reporting requirement, AB 1286 contains various other important provisions governing the practice of pharmacy in California.
Most experienced False Claims Act (FCA) practitioners are all too familiar with the statutory provision requiring defendants to pay whistleblowers’ attorneys’ fees at the end of FCA cases. What is less commonly known is the provision that grants defendants their attorneys’ fees in certain circumstances.
One whistleblower learned about that provision the hard way, when on March 14, 2024, a Mississippi federal judge ordered that he pay over $1 million to cover the defendants’ attorneys’ fees, following grant of summary judgment to defendants in what the judge labeled a “frivolous” qui tam. This blog post looks at the case that led to such a large attorneys’ fees award and considers the types of cases in which these efforts are wise.
Corporate defendants are frequently faced with a quandary—is the company’s highly sophisticated professional employee simply a fact witness or does their anticipated testimony propel them into the world of expert discovery? The individual knows the business inside and out, and typically has a comprehensive understanding of the entire industry, but the legal parameters of whether they qualify as a lay witness or expert witness in this context is not always clear. And either designation presents potentially significant risks. Companies must proceed with caution and consider the following before proceeding.
Husch Blackwell’s False Claims Act team previously covered the results of a rare False Claims Act (FCA) trial in which a federal jury found that a surgical product distributor was liable for paying kickbacks to physicians. The federal judge overseeing that trial initially entered judgment against the distributor defendants for $487 million after trebling the government’s actual damages and then adding penalties for each kickback-tainted claim.
On February 8, 2024, however, that same federal judge amended the judgment over concerns that the statutory penalties were unconstitutionally excessive. This article highlights the issue and explains what those accused of violating the FCA can learn from this decision.
In response to the COVID-19 pandemic, pharmaceutical companies like Pfizer worked diligently to develop safe and effective vaccines. Following the FDA’s approval of these vaccines, many state governments and private employers—including those in the educational and medical fields—implemented policies requiring certain individuals obtain them. Some individuals subject to these policies have been challenging them in court ever since under a variety of constitutional and statutory arguments, largely without success. These cases typically alleged that government mandates violated the right to bodily integrity under the Fourteenth Amendment and that private employer mandates violated laws that prohibit discrimination based on disability and/or religious beliefs.
As previously reported in this post, criminal trials premised on upcoding evaluation and management (E/M) service codes are extremely rare. The Justice Department took that rare step in Maryland in connection with a practice in which Dr. Ron Elfenbein, a physician, billed Medicare and private payors a Level 4 E/M for patients receiving COVID-19 tests. That billing practice, which at times took place at drive-through COVID testing centers, resulted in Dr. Elfenbein’s indictment and conviction by a jury in Maryland federal court.
But on December 21, 2023, the federal judge who presided over that trial granted Dr. Elfenbein’s motion for judgment of acquittal, vacating the conviction. These motions are commonly made but seldom granted. Why was this particular motion for acquittal granted? And what can the healthcare community learn from this case? Read on for details.