Sunday, October 7, 2012

Government Files Statement of Interest in Qui Tam against CVS/Caremark

Ed Silverman at the blog, Pharmalot, has written an interesting piece about the recent qui tam filed against CVS/Caremark by a former CVS auditor, Anthony Spay. Spay alleges false claims by CVS/Caremark relating to Medicare Part D, the prescription drug benefit program. The government declined to intervene in the matter, but Spay is moving forward with his qui tam suit. CVS/Caremark has moved to dismiss, and that has caused the government to file a "Statement of Interest," which opposes various positions of the Defendants.

Far from riveting, the Statement of Interest makes several points that may interest readers: First, the government requests that if the Court dismisses the Complaint, it do so without prejudice. "Because the United States has no part in preparing such complaints," the government argues, "it should not be prejudiced if a realtor has failed to plead his allegations sufficiently. Such a dismissal does not . . . mean that a better informed relator or the United States could not make out a viable claim in the future."

Second, the government argues that its decision not to intervene should in no way be interpreted to mean "that the claims lack merit." Such a presumption is "totally unwarranted and inappropriate." The decision not to intervene, the government asserts, "signals that the United States is not intervening - no more, no less" and "[i]t is inappropriate for Caremark to suggest that non-intervention is indicative of the United States' views of the merits of this case, for purposes of considering a motion to dismiss or for any other reason."

Third, much of the Statement of Interest addresses records known as Prescription Drug Event or "PDE" records and the role such records play in supporting Part D claims for reimbursement. The Statement of Interest seeks to rebut the attempt by CVS/Caremark to assert (i) that the PDE does not qualify as a "claim" for payment for the purpose of the False Claims Act; and (ii) that because PDE data was available for "research, analysis, reporting, and public health functions," it has been publicly disclosed and cannot be the basis for a FCA claim.

A. Brian Albritton
October 7, 2012

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