A recent trend among defendants in False Claims Act cases is to argue that their violations are not "material"--in other words, that even though they may be breaking the rules, the government doesn't care. This trend was spawned by a Supreme Court case typically referred to as "Escobar": Universal Health Servs., Inc. v. United States, 136 S. Ct. 1989, 2001, 195 L. Ed. 2d 348 (2016).
In cases of upcoding and misbilling, defendants' emphasis on the Escobar materiality test is misplaced. The Escobar test was formulated to apply in “implied certification” cases, as explained by the ...Read More ›
Upcoding and misbilling cases are "factually false" claims under the False Claims Act. The distinction between a "legally false” claim, and a “factually false” claim, was recently explained by the Fifth Circuit Court of Appeals, as follows:
FCA claims can be either legally false or factually false. E.g., United States v. Sci. Applications Int’l Corp., 626 F.3d 1257, 1266 (D.C. Cir. 2010) (recognizing factually false claims as “the paradigmatic case” and legally false claims as the “certification theory”). A claim is factually false when the information ...Read More ›
Most outpatient healthcare services are billed to Medicare, Medicaid, and other payers on a “CMS-1500” form, using Current Procedural Terminology (CPT) codes to identify the services performed. CPT codes, and their definitions, are published by the American Medical Association (AMA). Misbilling of CPT codes is one of the most common forms of False Claims Act violations in the healthcare field.
The Court of Appeals for the Sixth Circuit described the importance of CPT codes in poetic terms: “The Rosetta Stone for the billing codes is found in an American Medical Association ...Read More ›
Investors who invested in Initial Coin Offerings (ICOs) or purchased “digital tokens” may be wondering whether their investment is governed by any laws. Likewise, investors may be wondering if they have any recourse when they expect fraud or the ICO disclosures failed to provide material information.Read More ›
With a greater demand to access for healthcare services also comes the need for reliable and honest physicians and healthcare facilities. Unfortunately, throughout the country healthcare kickback schemes are becoming more prominent in the healthcare system.
Kickbacks are incentives, usually bribes or anything of value, paid to a physician or healthcare facility to induce the referral of items or services reimbursable by Medicare, Medi-Cal or private insurers. Now more than ever, whistleblowers are encouraged to exercise their duty and right to disclose fraudulent or wrongful conduct.Read More ›
Social media is a deeply embedded part of our culture. The rise and use of social media applications (apps) has become as common as having a smart phone or a computer. The prevalence of these apps is especially persistent in use by minors and young adults.
TikTok is a video-sharing social networking service owned by ByteDance, a Chinese company. The application is used to create short, “fun” videos typically featuring the user performing a song, dance, or themed monologue. Largely targeted at, and used by teenagers, TikTok is one of the most downloaded social media applications of the decade. As of 2019, 41% of TikTok’s 800 million users were between the ages of 16 and 24, with 90% of this group using the app daily.Read More ›
Mandatory arbitration clauses are ubiquitous in consumer contracts. In a 2019 survey, eighty-one Fortune 100 companies, including their subsidiaries or related affiliates, used an arbitration agreement in dealing with consumers. Imre Stephen Szalai, “The Prevalence of Consumer Arbitration Agreements by America’s Top Companies,” 52 UC Davis L. Rev. Online 233 (February 2019), https://lawreview.law.ucdavis.edu/online/vol52/52-online-Szalai.pdf. Of these companies, seventy-eight also included a class action waiver. Id. at 234. Moreover, the same source found that more than sixty percent of retail e-commerce sales in the United States were covered by broad consumer arbitration agreements. Id. Strikingly, this led to an estimate that at least 826,537,000 consumer arbitration agreements were in force in 2018. Id.Read More ›
The COVID-19 pandemic continues to affect people differently. Vulnerable populations who are inherently disadvantaged in protecting themselves against illness have, sadly, died from COVID-19 disproportionately to the population at large. The numbers are staggering. Reports show that 42% of COVID-19 deaths in the United States have occurred in nursing homes and assisted living facilities.Read More ›
For many years, the Kenney family— husband and wife Trina and Rick, and adult children Elijah and Jezriel — who is based in Phelan, California, have defrauded consumers in Southern California by misrepresenting the health, age, sex, and breed of puppies that they sell through Craigslist and other internet sites. The puppies that these consumers buy often die within days after purchase, and the consumers often spend thousands of dollars at the veterinarians office trying to save them before the puppies sadly pass away or are euthanized at the recommendation of the veterinarians.Read More ›
The first modern cryptocurrency, Bitcoin, took the financial world by storm with its meteoric rise in 2009. As Bitcoin’s value and popularity grew, cryptocurrencies – virtual funds that exist within a decentralized currency system – have steadily gained their place within the modern financial market, despite their high volatility and lack of benchmark for evaluation.
The current market value of one Bitcoin is $6766 US Dollars. Stories of early investors such as Erik Finman, who purchased Bitcoin for $12 US Dollars a coin, motivate many to seek the same success by investing in Bitcoin and new coins alike. In the aftermath of the Bitcoin boom, the frenzy and excitement over these novel investment options have led to the emergence of numerous cryptocurrencies and online exchange platforms.Read More ›