B. Scott McBride

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The DOJ Enters Another FCA Lawsuit Against UnitedHealth

Photo of Jennifer WhittonBy B. Scott McBride and Jennifer Whitton on Posted in Uncategorized
The U.S. Department of Justice (DOJ) recently filed its complaint in intervention in another whistleblower lawsuit brought under the False Claims Act against the nation’s largest owner and operator of Medicare Advantage (MA) organizations, UnitedHealth Group, Inc. (United). The DOJ’s 39-page complaint alleges that United had fraudulently obtained inflated risk adjustment payments by over reporting diagnosis … Continue Reading

Courts’ Consistent Application of Stevens to State Institutions of Higher Learning

By B. Scott McBride and John W. Petrelli on Posted in Uncategorized
The United States Supreme Court recently declined review of the First Circuit Court of Appeals’ ruling that the University of Massachusetts Medical School was an “arm of the state,” and thus, not subject to the federal False Claims Act (FCA).  U.S. ex rel. Willette v. University of Massachusetts, Worchester, No. 15-1437 (2017).  In declining review, … Continue Reading

A Tale of Two Escobars: Federal Courts Begin Grappling with Opposing Views of “Materiality”

By John W. Petrelli and B. Scott McBride on Posted in Uncategorized
On June 16, 2016, the U.S. Supreme Court issued a highly anticipated opinion in Universal Health Services, Inc. v. U.S. ex rel. Escobar, which for the first time expressly recognized implied certification as a viable theory under the federal False Claims Act (FCA). Implied certification is a theory that has been widely criticized by government contractors … Continue Reading

No Longer Implied: Supreme Court Expressly Recognizes Implied Certification as a Theory of Liability Under the False Claims Act

Photo of W. Barron A. AveryBy W. Barron A. Avery, B. Scott McBride and John W. Petrelli on Posted in Uncategorized
Court Rejects the First Circuit’s “Expansive View” of the Theory by Articulating “Rigorous” Standards of Materiality Yesterday, the U.S. Supreme Court issued a long-anticipated decision on the viability of the “implied certification” theory of liability under the False Claims Act (FCA). In Universal Health Services, Inc. v. United States ex rel. Escobar, a unanimous Court … Continue Reading

Differences in Medical Opinions: Not Enough to Prove FCA Liability

Photo of Kevin BradberryBy B. Scott McBride and Kevin Bradberry on Posted in Uncategorized
In a $200 million False Claims Act (FCA) litigation with certain twists and turns, the U.S. District Court for the Northern District of Alabama recently found that the federal government failed to show that claims submitted to the Medicare program by hospice defendant AseraCare were in fact false. The court held that because the only … Continue Reading

Caution: False Claims Act Penalties Poised to Double

By Darby C. Allen and B. Scott McBride on Posted in Uncategorized
A preview of the effects that a provision in the Bipartisan Budget Act of 2015 will have on healthcare providers came to light this week when the Railroad Retirement Board (Board) published an interim final rule implementing the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Act). The Act requires federal agencies to … Continue Reading

Escobar Oral Arguments: Justices Imply Outcome – False Claims Act Implied Certification May Survive

By B. Scott McBride and John W. Petrelli on Posted in Uncategorized
The U.S. Supreme Court recently held oral arguments in the case of Universal Health Services, Inc. v. U.S. ex rel. Escobar, No. 15-7, which is set to decide the viability of implied certification under the FCA. As discussed in our last update on the Escobar case, implied certification is a judicially-created theory under the FCA that establishes liability for a … Continue Reading

The Deeper Dive: The Final Overpayment Rule

By B. Scott McBride and Darby C. Allen on Posted in Uncategorized
The Centers for Medicare and Medicaid Services (CMS) recently issued its final rule for Reporting and Returning of Overpayments (Final Rule). The Final Rule implements section 1128J(d) of the Social Security Act, which requires Medicare providers and suppliers to report and return overpayments within 60 days after the overpayment was identified in most instances. Failure to report … Continue Reading

Breaking News: 60-Day Overpayment Rule Finalized

By B. Scott McBride and Darby C. Allen on Posted in Uncategorized
The Centers for Medicare and Medicaid Services (CMS) released its final rule implementing Section 6402(a) of the Affordable Care Act that requires Medicare providers and suppliers to report and return overpayments within 60 days after the date on which the overpayment was identified in most instances. Failure to report and return overpayments in accordance with … Continue Reading

Implied Certification and the FCA: Legally False or a False Legality? The Supreme Court Is Set to Decide

By B. Scott McBride and John W. Petrelli on Posted in Uncategorized
The United States Supreme Court recently granted certiorari in the case of Universal Health Services, Inc. v. U.S. ex rel. Escobar, No. 15-7, which places implied certification under the False Claims Act (FCA) squarely in the judicial crosshairs. Implied certification is a frustrating theory of liability for providers and contractors that receive government reimbursement, due to … Continue Reading

DOJ Takes Aim at Responsible Individuals in Corporate Investigations

By B. Scott McBride and Darby C. Allen on Posted in Uncategorized
U.S. Deputy Attorney General Sally Quillian Yates recently announced new instructions for attorneys at the U.S. Department of Justice (DOJ), outlining in a memorandum the DOJ’s policies with respect to civil and criminal enforcement actions against responsible individuals in corporate investigations. The policy announcement underscores that the federal government is increasingly focused on deterring responsible … Continue Reading

Texas Surgical Centers: Aetna Improperly Denies or Underpays Out-of-Network Claim

By John W. Petrelli and B. Scott McBride on Posted in Uncategorized
Aetna is now facing another set of claims calling into question its determination and payment methodology for out-of-network reimbursement. On September 4, 2015, six surgical centers in Texas (Allied Center for Special Surgery) filed suit in Harris County District Court against Aetna Health Inc. and Aetna Life Insurance Company (Aetna), claiming that Aetna underpaid or … Continue Reading

Texas Hospital Strikes Back at Aetna

By B. Scott McBride, Darby C. Allen and John W. Petrelli on Posted in Uncategorized
On February 23, 2015, Aetna filed suit in Texas federal court against Robert A. Behar, M.D. and North Cypress Medical Center (North Cypress), alleging that Dr. Behar, the CEO of North Cypress, offered impermissible ownership stakes in the 139-bed community hospital in exchange for patient referrals and designed an out-of-network business strategy that gave rise … Continue Reading

Kane and the “60-Day Rule”: The Unforgiving World of Medicare and Medicaid Overpayments

By B. Scott McBride and John W. Petrelli on Posted in Uncategorized
The Southern District of New York has spoken on one of the first issues to confront those seeking compliance with the new “60-day rule” under the Affordable Care Act (ACA), and it does not bode well for defendant hospitals and providers. On August 3, 2015, the district court in Kane v. Healthfirst, Inc., issued its … Continue Reading

Supreme Court Decision Has Good News and Bad News for Those Facing False Claims Act Litigation

By B. Scott McBride and Darby C. Allen on Posted in Uncategorized
On May 26, 2015, the Supreme Court of the United States (SCOTUS) issued an opinion in a federal False Claims Act (FCA) case that resolves two important procedural points litigants face: the tolling of the six-year statute of limitations period under the Wartime Suspension of Limitations Act (WSLA) and the application of the “first-to-file” rule. … Continue Reading

OIG Provides Additional Compliance Guidance for Healthcare Governing Boards

By B. Scott McBride and Nita Garg on Posted in Uncategorized
On April 20, 2015, the HHS Office of Inspector General (HHS OIG), in collaboration with the American Health Lawyers Association (AHLA), the Association of Healthcare Internal Auditors (AHIA), and the Health Care Compliance Association (HCCA), released a guidance document on compliance for healthcare governing boards, attorneys, compliance officers, and internal auditors. The insight provided by the … Continue Reading

Aetna Out of Patience With Hospital’s Alleged Out-of-Network Billing Scheme

By B. Scott McBride, Darby C. Allen and John W. Petrelli on Posted in Uncategorized
Aetna Life Insurance Company (Aetna) is going on the offensive against a Northwest Houston hospital with an out-of-network strategy. On February 23, 2015, Aetna filed suit in Texas federal court against Robert A. Behar, M.D. and North Cypress Medical Center (North Cypress), alleging that Dr. Behar, the CEO of North Cypress, offered impermissible ownership stakes … Continue Reading

Breaking News: CMS Delays Final Overpayment Rule

By B. Scott McBride and Darby C. Allen on Posted in Uncategorized
Today, the Centers for Medicare and Medicaid Services (CMS) announced that it is extending the deadline to finalize the rule implementing the Affordable Care Act provision that requires providers to timely report and return overpayments to the Medicare program. The proposed rule was issued in February 2012, and CMS is required to provide notice to … Continue Reading

New Limitations on RAC Program

By B. Scott McBride and Nita Garg on Posted in Uncategorized
In March 2014, CMS temporarily suspended the Recovery Audit Contractor (RAC) program until it secured new contracts. The contracts for the program expired in June 2014, and in August, CMS said that it would restart the program on a restricted basis under a new contract that allows recovery auditors to review a limited number of … Continue Reading

CMS Offer Deadline to Settle Hospital Inpatient Claim Appeals Draws Near

By Nita Garg and B. Scott McBride on Posted in Uncategorized
In an attempt to clear the backlog of appeals of short inpatient stays, the Centers for Medicare and Medicaid Services (CMS) recently announced a settlement offer for hospitals with claims currently pending in the appeals process. In exchange for withdrawal of their appeals, CMS is offering these hospitals 68 percent of the net payable sum to resolve … Continue Reading

Summer Fraud and Abuse Roundup

By Darby C. Allen, Donna S. Clark and B. Scott McBride on Posted in Uncategorized
The federal government was busy over the summer when it came to decisions and settlements under the Stark Law, anti-kickback law and federal False Claims Act. This article revisits recent developments with respect to healthcare fraud and abuse. Group Practice Pays Over $1 Million for Improper Compensation Formula The New York Heart Center, a cardiology … Continue Reading

OIG Revamps Regulations Concerning CMPs and Exclusion

By B. Scott McBride and Darby C. Allen on Posted in Uncategorized
In a pair of proposed rules published in May, the HHS OIG unveiled changes to the regulations concerning OIG’s authority to impose civil monetary penalties (CMPs) and exclude individuals and entities from participation in federal healthcare programs. The changes are largely driven by provisions in the Affordable Care Act (ACA) and illustrate OIG’s expansion of … Continue Reading

CMS Announces Changes to RAC Program; Temporary Pause in Document Requests

By B. Scott McBride and Anne Foster on Posted in Uncategorized
The Centers for Medicare & Medicaid Services (CMS) recently published an announcement indicating that the agency is “in the procurement process for the next round of Recovery Audit Program Contracts” and is winding down its current contracts to enable Recovery Auditors to complete all outstanding claim reviews and other processes by the end date of existing … Continue Reading

HHS’s Mixed Messages: Identifying a Federal Healthcare Program When You See It

By B. Scott McBride and Summer D. Swallow on Posted in Uncategorized
Recent seemingly contrary determinations by the U.S. Department of Health and Human Services (HHS) have fueled industry speculation regarding whether qualified health plans (QHPs) available on the health insurance exchanges would be considered “federal health care programs,” and thus subject to the various fraud and abuse laws applicable to such programs, including the federal anti-kickback … Continue Reading
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