Bipartisan Effort to Amend the False Claims Act

March 12, 2009 by Justin Goldstein · 2 Comments
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photo by oooh.oooh via Flickr

American Health Lawyers Association reports that Senators are seeking to amend the False Claims Act:

Senators Charles Grassley (R-IA), Richard Durbin (D-IL), Patrick Leahy (D-VT), Arlen Specter (R-PA), and Sheldon Whitehouse (D-RI) introduced recently the False Claims Act Clarification Act of 2009 (S. 458), which would amend the False Claims Act (FCA) to strengthen a whistleblower’s ability to bring a qui tam action on behalf of the government, among other things.

This amendment would also clarify some of the ambiguity surrounding the FCA. The AHLA stated:

The bill includes a provision clarifying that the FCA was intended to extend to any false or fraudulent claim for government money or property, whether or not the claim is presented to a government official or employee, whether or not the government has physical custody of the money, and whether or not the defendant specifically intended to defraud the government.

This clarifying amendment may have a significant impact on two areas of health care litigation. First, the amendment would strengthen qui tam actions against pharmaceutical companies where the pharmaceutical companies do not actually present a claim to the government, such as with off-label drug marketing cases. Second, the amendment may strengthen “bootstrapped” qui tam actions, where the qui tam relator brings a FCA action for Anti-Kickback Statute and/or Stark Law violations (physician “self-referral” cases), despite the lack of any specific FCA violation, and because the Anti-Kickback Statute and Stark Law themselves lack a private right of action.

At the very least, the proposed amendment, which would facilitate the use of qui tam actions, is further evidence of the federal government’s increased reliance, and an intention to continue in such reliance, upon qui tam actions as a means of both regulatory and punitive enforcement.

Tags: American Health Lawyers Association, Anti-Kickback Statute, Arlen Specter, Charles Grassley, Civil False Claims Act, False Claim Act, False Claims Act Clarification Act of 2009, News, Off-Label, Patrick Leahy, Qui tam, Richard Durbin, Sheldon Whitehouse, Stark Law, Whistleblower

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Family-Run Medical Equipment And Billing Companies Enterprise Lead To Prison Time : HEALTH REFORM WATCH says:

03/23/2009 at 8:09 pm

[...] we have noted in prior posts, there seems to be an increased governmental reliance upon qui tam actions, which rely, at least [...]
Home Health Area Especially Vulnerable To Medicare Fraud And Abuse : HEALTH REFORM WATCH says:

03/27/2009 at 10:51 am

[...] Grassley, who is very active in the pursuit of health care reform. Among other initiatives, Senator Grassley is one of the senators seeking to amend the civil False Claims Act, and he has also sought to require not-for-profit hospitals to justify their tax exemptions. [...]

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