Health Care Lawyer Blog

A federal appeals court has rejected a challenge brought by the American Civil Liberties Union (ACLU) that the seal provisions of the federal civil False Claims Act are unconstitutional.

The federal False Claims Act, which was enacted by President Abraham Lincoln during the Civil War, permits a private individual with knowledge of fraud against the federal government to file suit on the government’s behalf. Although initially enacted to deter fraud against the Union Army, the False Claims Act (FCA) has been increasingly used to combat fraud against government-funded health care programs.

The statutory provisions of the FCA require the complaint to be filed under seal for a 60-day period to permit the government to investigate the claims brought by the private plaintiff or “relator”. While the case is under seal, the complaint and other pleadings are not available on the federal court docket; the defendant is not served with or otherwise put on notice of the complaint; and the relator is prohibiting from speaking about the allegations involved.

Last fall the ACLU filed a lawsuit in the Eastern District of Virginia, alleging that the FCA’s seal provisions violate the public’s First Amendment right of access to judicial proceedings. Additionally, the ACLU alleged that the seal provisions violate the First Amendment by “gagging” relators, and infringe on a court’s inherent authority to decide on a case-by-case basis whether a particular complaint should be sealed or not. The district court rejected the ACLU’s claims and granted appellees’ motion to dismiss.

After the jump - Court Addresses ACLU Challenges

Continue reading " Appeals Court Rejects ACLU's Challenge to Constitutionality of Whistleblower Law " »

Imagine you walk past a bank one day and notice a bank robbery taking place. Being a law-abiding citizen, you immediately call the local police to notify them of the crime. Now imagine that it takes the police four months to respond to the bank robbery.

Sounds crazy, right? Unfortunately, such a delay is not unusual when citizens report some crimes; specifically, Medicare and Medicaid fraud. A recent report issued by the U.S. Department of Health and Human Services Office of Inspector General (OIG) revealed that nearly 30 percent of fraud reports received by the federal government's health care fraud hotline were not acknowledged for over four months.

In the report, the OIG identified 1,427 complaints made to the fraud hotline (1-800-HHS-TIPS) that OIG had forwarded to the Center for Medicare and Medicaid Services (CMS) during the first six months of 2008. From these, OIG selected a random sample of 120 complaints. The OIG's specific findings were as follows:
- For 58 percent of complaints, contractors started work within 30 days of CMS' receipt of the complaints from OIG.
- However, for 29 percent of complaints, contractors took more than four months to start work.
- The number of days between the date that a complaint was uploaded from the hotline to CMS, and the date the contractor started work on the complaint ranged from zero to 660 days, with an average of 163 days (approximately 5 months).

Continue reading " OIG Cracks Down On Responses To Fraud Complaints " »

The United States Court of Appeals for the 11th Circuit in Atlanta has granted the U.S. Justice Department’s request to expedite its appeal of Judge Roger C. Vinson’s January 31 holding that PPACA is unconstitutional. The Justice Department’s request followed Judge Vinson’s decision on March 3, in which the judge clarified that he intended his January 31 holding to be the practical equivalent of an injunction as to implementation of PPACA but offered to stay his ruling as long as an appeal to the 11th Circuit or the U.S. Supreme Court was filed within a week.

Parties on both sides have now moved for quick review of the ruling. A group of GOP state governors sent a February 9 letter to President Obama and the Justice Department that requested swift appeals of all pending cases regarding PPACA. The letter stated that “[g]iven the daunting and costly financial and regulatory burdens that our states and the private sector will face in implementing PPACA over the coming years, particularly during this unprecedented budgetary time, public interest requires expediting a final resolution of the litigation to give certainty as soon as possible.”

Florida Attorney General Pam Bondi made a similar request when she asked that the expected review by the 11th Circuit be before all 10 active 11th Circuit judges rather than the typical three-judge panel. Supporting her request, Bondi pleaded that “This case is so significant to all Americans that it needs to be resolved as quickly as possible . . . . If granted, the petition would allow a faster track to the Supreme Court.”

If the new scheduled is followed without changes, then review by the 11th Circuit is expected in June 2011.

Last week a D.C. district court judge held that PPACA’s individual coverage mandate is a constitutional exercise of Congress’ power under the commerce clause, which marks the third federal court decision in favor of the health reform Act.

Not to be outdone in the ongoing volley over the constitutionality of the Act, however, yesterday Judge Roger Vinson of Pensacola – who held last month that PPACA is UNconstitutional – ordered the Obama administration to stop enforcing any part of the 2,700 page Act. However, Vinson then immediately put his ruling on hold on the condition that the Administration quickly appeal the case either to the Eleventh Circuit or to the Supreme Court.

Vinson’s ultimatum is part of an ongoing push by anti-PPACA groups to have the Act immediately thrust before the Supreme Court for review. Although Vinson’s ruling was handed down Jan. 31, under the Federal Rules of Civil Procedure the federal government has 60 days after a ruling to appeal. However, anti-PPACA groups are clamoring to have PPACA’s review be excused from normal appeal procedures and timelines on the basis of compelling public interest.