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New York Health Care Law Blog

Escobar decision and implied certification in FCA cases

The False Claims Act (FCA) makes it illegal to use false or fraudulent claims to seek payment from government sources, like Medicare and Medicaid. This law is complex. Court cases have questioned the best way to apply the FCA to establish a violation. These cases often require the plaintiff establish four elements: "(1) a false statement or fraudulent course of conduct, (2) made with scienter, (3) that was material, causing (4) the government to pay out or forfeit moneys due." The outcome of these cases often hinges on the scienter and materiality elements.

This piece will focus specifically on how a recent case provides some guidance on establishing scienter.

Health care industry take note: Current enforcement trends

The health care industry is heavily regulated. Various laws and court cases impact the practices of drug manufacturers, physicians, nursing homes and others in the medical field. Those that are part of this field are wise to stay abreast of changes that could impact their profession.

Three specific enforcement trends noticed in recent months include:

Diagnostic labs victims of “aggressive audit tactics”

Audit activity by government regulators and private payers has been on the rise. These investigations ramped up throughout 2017 and accelerated through 2018. The dramatic increase in audits is likely connected to the price cuts implemented with the new Medicare Part B.

Which labs are at risk? Toxicology, pharmacogenomics, molecular and genetic testing laboratories are often at highest risk. Though with the latest jump in audit rates, every medical laboratory is at an increased risk when compared to prior years.

HHS seeks repayment of sleep resupply claims over past six years

The United States Department of Health and Human Service’s (HHS) Office of Inspector General (OIG) recently released a report that states most Medicare claims from durable medical equipment supplies for payment for replacement positive airway pressure (PAP) device supplies were not in compliance with Medicare requirements.

As a result, the agency has requested suppliers review claims and return any overpayments.   

Noncompete agreements and physicians: Are they on the rise?

The number of doctors starting up private practices is on the decline. Instead of working on their own, physicians are taking jobs with hospitals. Executives with the hospital often require these medical professionals to sign a noncompete agreement as part of their contract for employment. This has led to an increase in the number of physicians that are bound by noncompete agreements.

When is Facebook use in the hospital cause for a lawsuit?

Social media use can result in litigation. Two specific instances that can result in legal woes for physicians and other medical professionals include issues of negligence or defamation.

Scenario #1: Negligence.

New York officials charge 5 doctors for drug crimes

New York officials recently released the indictment of five local physicians accused of drug crimes. The government stated the physicians were “drug dealers in white coats” who knowingly and intentionally sold addictive and dangerous medications, fueling the opioid epidemic.

The charges were the result of investigations led by three different Drug Enforcement Administration (DEA) offices. Medical professionals charged include:

Man expelled from Haiti to face healthcare fraud charges in U.S.

After over ten years of investigating and searching, the United States Department of Health and Human Services has recaptured and charged a man with healthcare fraud. In response to the initial charges made ten years ago, the accused fled. He left the country and, until recently, was in Haiti.

A recent report by the New York Post states the man was “expelled” from Haiti. The United States government promptly arrested the man upon his return to the United States.

New York City officials' crackdown on home health care agencies

The New York City Department of Consumer Affairs (DCA) is following the recent practices of the United States Department of Labor. The federal government recently identified a prevalence of labor law violations within the home health care agency industry. As such, the DCA put together a group to investigate for local offenders.

What did the DCA find? The agency recently announced the results from the major enforcement initiative focused on home health care agencies. The effort resulted in 42 investigations throughout the five boroughs. Based on these investigations, the DCA reported "widespread noncompliance" of home health care agencies with labor laws and regulations.

U.S. hospital chain to pay over $260M to settle fraud charges

Allegations of kickback violations can lead to more than just harsh civil penalties, they can also lead to criminal charges. That was the case when the government accused a national hospital chain of various forms of healthcare fraud, including kickback violations.

Charges explained: Government investigation results in civil and criminal penalties

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