Tuesday, December 20, 2016

Sixth Circuit Interprets 2009 Reverse False Claims Amended Provision: What Does It Mean to Knowingly Avoid Paying an Obligation to the United States?

Dear Readers:

I recommend to you the Sixth Circuit’s recent case addressing the application of the reverse-false-claim provision, 31 U.S.C. § 3729(a)(1)(G), of the False Claims Act: US ex rel. Harper v. Muskingum Watershed Conservancy District, --F.3d--, 2016 WL 6832974 (6th Cir. 2016).

According to Harper, prior to the 2009 amendment of the False Claims Act (“FCA”) by the Fraud Enforcement Recovery Act, the FCA’s reverse-false claim provision essentially imposed liability “only [on] those defendants who knowingly perpetrated a fraud against the government.” See 31 U.S.C. § 3729(a)(7)(2006) (“knowingly mak[e], us[e], or caus[e] to be made or use a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the government”). As a result of the 2009 amendment, the FCA omitted the requirement that a defendant make, use, or cause to be made or used, a false record or statement from the reverse-false-claims provision. Now, the reverse-false-claims provision provides for FCA liability against anyone who “knowingly conceals and knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government.” 31 U.S.C. § 3729(a)(1)(G). As there has been “little established case law” interpreting this amended provision, Harper provides an instructive and helpful analysis of the 2009 reverse-false-claim provision.
In Harper, the relators brought a qui tam against the Muskingum Watershed Conservancy District (“the District”) alleging, in part, that the District had violated the reverse-false-claims provision of the FCA. According to relators, the District violated deed restrictions on lands it had received from the federal government and, as a result, had an obligation to return the lands to the federal government and had failed to do so. The land grant from the federal government was subject to a proviso that the land revert and revest to the United States in the event that the District ceased using the lands for recreation,conservation, and reservoir development, or if the District alienated or attempted to alienate the lands. The District had negotiated easements with private firms permitting them the right to develop subsurface oil and gas reserves (i.e., conduct fracking) on these lands. Opposing the District’s plans to allow fracking, two relators brought a qui tam alleging that the District’s efforts to lease fracking rights represented an attempt to alienate the land that triggered the reverter clause in the deed. According to Relators, the District should have returned the lands to the federal government and was improperly in possession of them. The United States declined to intervene.

Observing that “none of our sister circuits” had applied the 2009 reverse-false-claims act provision, Harper explained that the provision’s “new scienter requirement . . . should be interpreted to apply to both the existence of a relevant obligation [to the government] and the defendant’s own avoidance of that obligation.” To show that “Smith knowingly avoided an obligation to the United States,” the Court instructed, means that “Smith knew he had an obligation to the United States and knew that he was avoiding it.” The Court went on “unless the circumstance of a case shows the defendant knows of or ‘acts in deliberate ignorance’ or ‘reckless disregard’ of, the fact that he is involved in conduct that violates the legal obligation to the United States, defendant cannot be held liable under the FCA.” Any other interpretation, Harper stated, “would make the FCA’s punitive damages and penalties interchangeable with remedies for ordinary breaches of contract or property law obligations.”
Affirming the District Court’s dismissal of the relators’ claim, Harper held that the relators failed to “state facts from which [the District’s] awareness of the alleged FCA violations may be inferred even under the more liberal pleadings standard set forth in Federal Rules of Civil Procedure 8(a). The relators had “not pleaded facts” showing that the District knew that its easements violated an obligation to the United States. The relators argued that “a defendant acts knowingly when [it] has notice of a legal obligation to the government, even if the defendant believes that the obligation does not apply under the circumstances.” The FCA, observed Harper, “is aimed at stopping fraud against the United States and does not create a ‘vehicle to police technical compliance with federal obligations.’” “[E]stablishing knowledge under FCA provisions that use knowledge as scienter requires plaintiffs to prove the defendant knows that he violated an obligation, not simply that he mistakenly interpreted a legal obligation.”

According to Harper, relators failed to meet their burden because neither their Complaint nor their proposed Amended Complaint showed how the District would have known that the fracking leases violated the deed restrictions or how the District acted in deliberate ignorance or reckless disregard of that fact. “In the absence of such facts,” the Court pointed out, “the relators failed to show anything more than a possibility that [the District] acted unlawfully.” “It is not enough,” stated Harper, “for the relators’ Complaint simply to infer the mere possibility of misconduct.” 

The Court acknowledged that relators had pled that the District knew about the deed restrictions, and that “such an inference would be consistent with the theoretical possibility that [the District] in fact believed that the restrictions forbade it from executing the oil and gas leases.” Yet, Rule 8’s plausibility standard, the Court noted, “asks for more than a sheer possibility that a defendant has acted unlawfully.” The relators’ claim, the Court explained, could only succeed “if the Court makes inference upon inferences to provide the facts missing from the Complaint.” Rule 8, however, “does not obligate the Court to engage in such speculation,” and as a result, the claim was properly dismissed.

Harper also sustained the District Court’s finding that the relators’ proposed amendment to correct these deficiencies was futile. In the face of the relators’ argument that they should have had another opportunity to cure the deficiencies pointed out by the District Court’s opinion, Harper noted that “relators are not entitled to an advisory opinion from the District Court informing them of the deficiencies of the Complaint and then an opportunity to cure those deficiencies.”

Overall, Harper is a very helpful case for defendants facing reverse-false-claim allegations. Essentially, the Court is saying that given the severity of the False Claims Act penalties and damages provisions, relators must show and plead that a defendant is not only aware of an obligation in the United States, but also that the defendant knows that it is violating that obligation. At least for a technical legal obligation, the Court will not infer that the defendant knew or was deliberately ignorant that its conduct violated a legal obligation to the federal government. Rather, a relator must plead some facts to show a defendant knows it is violating  such an obligation.

A. Brian Albritton
December 20, 2016

Wednesday, December 14, 2016

U.S. Department of Justice 2016 False Claims Act Statistics: Another Banner Year for DOJ and Back-to-Normal for Relators in Declined Cases

The Civil Division of the U.S. Department of Justice (DOJ) late today announced its False Claims Act recovery statistics and highlights for fiscal year 2016.  Here is DOJ's press release, its cumulative statistics for 1987 through 2016, and DOJ's "Fact Sheet" Memo summarizing and extolling the significant False Claims Act settlements and judgments of the Obama administration for 2009 - 2016.

2016 was another banner year for the False Claims Act enforcement:  the third best ever with $4.7 billion in total FCA settlements/judgments.  A few observations regarding the DOJ's 2016 statistics:

  • 2016 was DOJ's best year ever for recoveries in non-qui tam FCA cases, i.e. cases in which there was no relator and were direct-filed by DOJ.  In 2016, DOJ recovered $1.856 billion, more than double last year's recovery in DOJ initiated cases, and about10% better than its best previous year in 2014.
  • Relator settlements/judgments and relator awards in those FCA cases where the government declined to intervene were down dramatically from last year's "best ever" recovery.  In 2015, relators recovered $1.174 billion in government declined cases. By contrast, in 2016, relators recovered almost $105 million in declined qui tam, down 91%. In turn, relator share awards in declined cases fell from $336 million in 2015 to $28 millon in 2016, a 92% decrease.
  • In 2016 relator share awards for all cases, both intervened and declined cases combined, were down nearly 23%, from $667 million in 2015 to $519 million in 2016.
  • FCA "new matters" were up in 2016 for both DOJ direct filed cases and qui tams. Relators filed 702 new qui tams, up from 639 in 2015: almost a 10% increase. 
  • DOJ direct-filed claims rose from 110 in 2015 to 143 in 2016, almost 23%.  This was the third best year for direct-filed cases since 1997: DOJ filed 144 and 161 direct-file cases in 2012 and 2008 respectively.
  • Healthcare related FCA cases continue to lead the way in categories of FCA cases and recoveries: 
    • Out of the $4.7 billion total FCA settlements and judgments, $2.597 billion was attributable to health care related cases, almost 55%.
    • DOJ reports that 2016 is the 7th consecutive year that civil healthcare fraud recoveries exceeded $2 billion.
    • Of the 702 qui tams filed, 501 or 71% were healthcare related.  
    • Recoveries from health care qui tams account for $2.427 billion or 93% of the $2.597 billion in health care settlements/recoveries.
    • Relators were awarded $450 million in relator share awards in healthcare cases, up roughly 14% from the year before.
    • As outlined in DOJ's press release, a large portion of the overall healthcare related settlements came from a handful of big settlements: $784.6 million paid by Wyeth and Pfizer; $390 millon paid by Novartis; $244.2 million paid by Tenet Healthcare Corp., $260 million paid by Millennium Health; and $125 million paid by RehabCare Group/Kindred Healthcare.
  • Department of Defense (DOD) related FCA cases, both direct-filed and qui tams, continued their longtime trend downward. Relators filed 31 DOD related qui tams, the lowest number since since1989. Last year, DOJ set the record for the lowest number of direct-filed DOD related FCA cases: only 7 filed. This year, DOJ filed 8.
  • In FCA cases excluding health care and DOD, DOJ had its second best year of recoveries: $2.041 billion. The overall best year in this category was 2014 when DOJ recovered $3.3 billion.
    • The largest portion of recoveries in this category, $1.698 billion, is attributed to DOJ direct-file cases. Recoveries from qui tams, both intervened and declined cases, was $343 million --down nearly 64% from $936 million recovered from these qui tams in 2015.
    • FCA cases relating to housing and mortgage fraud accounted for $1.6 billion in recoveries, with two large settlements standing out: a $1.2 billion settlement with Wells Fargo and a $113 million settlement with Freedom Mortgage.
A. Brian Albritton
December 14, 2016

Tuesday, December 6, 2016

Supreme Court Finds That Courts Have Discretion to Fashion Remedy for Violations of False Claims Act Seal Provision: State Farm Fire & Casualty Co. v. U.S. ex rel. Rigsby

Dear Readers:

The Supreme Court today handed down its unanimous decision in State Farm Fire & Casualty Co. v. U.S. ex rel Rigsby et al, and affirmed the 5th Circuit's ruling that a relator's violation of the False Claims Act's "seal" provision, 33 U.S.C. § 3730(b)(2), does not require dismissal of the relator's qui tam complaint. I assume this ruling was widely anticipated since, as the Court pointed out, there is nothing in the False Claims Act's "text and structure" that requires dismissal of a relator's qui tam in the event a relator violates the seal. As to what sanction, including dismissal, may be appropriate for a violation of the seal, the Supreme Court left that to the "sound discretion of the district court." 

For those seeking further details about the Rigsby decision, I commend to you Ronald Mann's analysis of the Court's opinion found on SCOTUSblog: Opinion analysis: Justices reject automatic dismissal for seal violations in False Claims Act cases.

A. Brian Albritton

December 6, 2016

Thursday, December 1, 2016

Fifth Circuit Refuses to Take the “One Purpose” Test of the Anti-Kickback Statute to Its Logical Extreme: United States ex rel Ruscher v. Omnicare, Inc.

Dear Readers:

As you have probably experienced, False Claims Act (“FCA”) cases based on alleged violations of the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b), have risen sharply in the last few years. Simply stated, the Anti-Kickback Statute (“AKS”) makes it a crime to knowingly and willfully offer, pay, solicit, or receive any remuneration directly or indirectly to induce or reward referrals of items or services reimbursable by a Federal health care program, such as Medicare or Medicaid. The AKS has been broadly enforced primarily, in my view, due to the application of the “one purpose” test: that is, to prove that a contract or transaction between health care providers violates the AKS, a relator or the government need only show that “one purpose” of the remuneration involved in the transaction was for the purpose of inducing referrals. See Robert G. Homchick, “Federal Anti-Kickback Statute Primer.” Not surprisingly with a lower standard of proof to prove a “false claim,” enforcement of the AKS through the False Claims Act has expanded its reach into areas that would have been unthinkable years ago when most of the AKS enforcement was on the criminal side. In fact, one commercial blog claims that “Anti-Kickback Statute violations — as well as violations of the Stark Law — now make up most False Claims Act cases.” Becker’s Hospital Review, “20 things to know about the Anti-Kickback Statute,” September 5, 2014.

Amidst these ever growing AKS cases, I came across a remarkable case, United States ex rel Ruscher v. Omnicare, Inc., et al., 2016 WL 6407128, __ Fed. Appx.__ (5th Cir., 10/28/2016), that applied a common sense analysis to this “one purpose” test and refused to extend it to a logical extreme.  Ruscher refused to find an AKS violation simply because one of the parties to a contract designed to provide legitimate pharmacy services “merely hoped” or expected referrals as a benefit or by-product of that contract. 

Here are some of the key facts: Defendant Omnicare provided pharmacy services to skilled nursing facilities (“SNFs”) and their residents. Omnicare routinely entered into Preferred Provided Agreements with the SNFs, which designated Omnicare as the SNFs’ preferred provider of pharmacy services and set forth, among other things, pricing, payment terms, and billing mechanisms. These SNFs provided medical, nursing, and therapy services to residents who usually had their pharmacy drug costs reimbursed by Medicare Part A, Medicare Part D, or Medicaid. Part A benefits last for 100 days. When providing pharmacy benefits to residents covered by Part A, Omnicare billed the SNF for prescription costs. Medicate, in turn paid the SNFs a per diem amount for each Part A resident’s care, including pharmacy services. After a resident’s Part A benefits expired, any pharmacy services provided to residents by Omnicare were reimbursed by the patient’s Medicare Part D and/or Medicaid coverage. 

Omnicare’s billing and collections from these SNFs sometimes resulted in some confusion as to whether Omnicare had properly billed and been paid for the services it provided. This confusion gave rise to billing disputes with the SNFs that sometimes took years to resolve.  The relator in Ruscher worked in Omnicare’s Collections Department for a time, collecting past-due accounts from SNFs. She became suspicious of Omnicare’s contract negotiations with these SNF clients over past due accounts receivables, and as a result, filed a False Claims Act qui tam against Omnicare and several other defendants in the Southern District of Texas. Among other things, the relator alleged that Omnicare violated the FCA by purportedly making and causing SNFs to make false claims on the SNFs’ cost reports for Medicare and Medicaid reimbursement that allegedly resulted from kickbacks in violation of the AKS. After pending for several years, the Court granted summary judgment in favor of Omnicare, and the Fifth Circuit affirmed that summary judgment. Among other things, the relator primarily contended that Omnicare paid unlawful kickbacks to the SNFs both by not collecting Part A debt that was allegedly owed it and by offering prompt-payment discounts to induce the SNFs to refer patients to Omnicare who were covered under Medicare Part D and Medicaid. Stated simply, the relator alleged that Omnicare was not collecting all that it was due from the SNFs or offering the SNFs favorable payment terms so that the SNFs in turn would have a favorable opinion of Omnicare, continue to contract with it, and continue to refer the SNF residents whose pharmacy services were reimbursed by Medicare Part D and Medicaid.

The Fifth Circuit acknowledged that the AKS “criminalizes the payment of any funds or benefits designed to encourage an individual to refer another party to a Medicare provider for services to be paid for by the Medicare program" and that the relator needed to only show that “one purpose of the remuneration was to induce such referrals.” Yet, the Court found the Omnicare did not violate the AKS: “there is no AKS violation . . . where the defendant merely hopes or expects referrals from benefits that were designed wholly for other purposes.” Among the reasons cited by Ruscher to support its finding were:

  • OIG – HHS had previously stated that prompt payment discounts were not included among the designated HHS “Safe Harbors” because “by definition, preferred payment discounts are designed to induce prompt payment and thus do not appear to violate” the AKS.
  • Relator’s evidence primarily showed Omnicare was trying to collect verifiable debt and settle billing disputes without unnecessarily aggravating its SNF clients in the midst of ongoing or anticipated contract negotiations.
  • At best, the evidence showed that Omnicare did not want unresolved settlement negotiations to negatively impact its contract negotiations with SNF clients and was avoiding confrontational collection practices that might discourage SNFs from continuing to do business with Omnicare.
  • None of the evidence showed that Omnicare designed its settlement negotiations and debt collection practices to induce SNF clients to continue making Medicare and Medicaid referrals to Omnicare.
  • SNFs were not told they were getting special benefits from Omnicare settlement negotiations and debt collection practices let alone that any such benefits were tied to Medicare and Medicaid referrals.  The Court noted that “if purported benefits were designed to encourage SNFs to refer Medicare and Medicaid patients, one might expect to find evidence showing that the SNFs at least knew about those benefits.”
  • While Omnicare “may have hoped for Medicare and Medicaid referrals, absent any evidence that Omnicare designed its settlement negotiations and debt collection practices to induce such referrals, relator cannot show an AKS violation.”
  • Omnicare’s prompt payment discount offers to SNFs did not violate the AKS because there was no evidence they were designed to induce referrals.  The relator showing that they were offered in contract negotiations and included in new contracts was not enough in and of itself to show an illegitimate motive for the purpose of inducing referrals rather than the legitimate purpose of inducing payments.  

In short, the Court found that Omnicare’s legitimate billing and collections practices with its SNF clients did not run afoul of the AKS simply because a byproduct of its contracts and its collections practices was to promote continued good will with the SNFs and, in turn, their referrals. The Court distinguished such an agreement from other agreements that are designed, at least in part, to induce referrals. 

Perhaps the most remarkable result is that the 5th Circuit affirmed summary judgment for Omnicare and did not find this question of Omnicare’s motive or intent to be a jury question. In affirming summary judgment, the Ruscher Court relied on a criminal case, U.S. v. McClatchey, 217 F.3d 823, 834 (10th Cir. 2000), which addressed the AKS in the context of ruling on a jury instruction. According to McClatchey, determinations as to a defendant’s motive in AKS cases are jury determinations. In a footnote, the Court observed that “it may be difficult for a jury to distinguish between a motivating factor and a collateral hope or expectation. Making such difficult determinations, however, is the very role to which our system of justice assigns to the finder of fact.”  

Unfortunately, the 5th Circuit decided not to publish Ruscher. Nor did the Court provide any guidance as to how better to distinguish between agreements for which one purpose is the inducement of referrals and legitimate agreements wherein one of the parties hopes that referrals result from the agreement.  Nevertheless, it is a good first step, and hopefully one that other courts will expand upon and bring some common sense limitations to the application of the AKS. 

A. Brian Albritton
December 1, 2016