The False Claims Act provides that whistleblowers are entitled to a percentage of any recovery for verifiable false claims against the U.S. Government. Fraud includes filing claims for payment that are improper. Examples include overbilling and billing for services that are unnecessary. Fraud includes submitting the false bill, using evidence to verify the bill that is false, and conspiring with others to submit a false claim.
In the Tenth Circuit Case, the Appeals Court declined to consider a request for an en banc hearing – a request for the full Appellate Court to decide an appeal. The Court implied that none of the Justices though the reconsideration request had merit.
The request for the rehearing was submitted by Intermountain Health Care Inc. on behalf of one of its physicians. The act of fraud the doctor is charged with committing was performing heart procedures that were unnecessary. The whistleblowers’ claim asserted that the physician had billed for 861 “patent foramen ovale” procedures in 2010 – even though the Cleveland Clinic, a prestigious medical entity providing similar care, had only billed for 37 of the same procedures in 2010.
A federal court judge found the False Claims Act did not have merit because the need to perform the procedures couldn’t “be proven to be objectively false” unless Medicare provided “clear guidance” on the propriety of the procedures. The Tenth Circuit disagreed with the district court judge. It ruled that “it is possible for a medical judgment to be ‘false or fraudulent’ as proscribed by the FCA.”
Intermountain appealed the Tenth Circuit’s ruling arguing that complaints of fraudulent acts must be detailed and precise according to Federal Rule of Civil Procedure 9 (b). Intermountain said that failure to provide specifics when a defendant has “exclusive control of crucial information” would defeat the intent of the procedural rule. Intermountain complained that the relator should provide more than just saying it doesn’t have the information and the defendant does.
The attorney for the whistleblower asserted that enough specifics were provided – including identifying the type of suspect surgeries. The lawyer said the only key details that weren’t provided were the specifics about the actual claim submissions – which Intermountain knew because it submitted the claims.
The denial of the reconsideration effectively means that the specifics in a federal complaint can be based on the fraudulent intent of the physician – knowing the type of surgery billed to Medicare is often an unnecessary surgery.
The denial of the reconsideration now means the False Claims Act can proceed at the district court level. The defendants include Intermountain, the physician, and St. Mark’s Hospital.
Stephen Danz & Associates is a top California False Claims Act Law Firm. We understand the requirements for filing a False Claims Act. We guide the whistleblower through the litigation and appeals process. For help with any type of whistleblower claim, including claims under the False Claims Act, please call us at 877 789 9707 today.