False Claims Act litigation may have significant impact this year, as the Supreme Court decides which cases to hear. The Supreme Court has already accepted one False Claims Act case, and appears to be seriously considering another. Meanwhile, the Department of Justice has been sinking FCA lawsuits at “an unprecedented pace.” How will that affect future FCA litigation, nationwide?
Here are two FCA cases to watch.
The Department of Justice’s authority to end FCA suits
One of the biggest FCA controversies comes from the Department of Justice’s ability and authority to end FCA litigation, over the objections of whistleblower plaintiffs. In recent years, the DOJ has begun ending FCA lawsuits, which often include Medicare and Medicaid billing, at a faster rate than ever before. This has resulted in the Supreme Court taking on Polansky v. Executive Health Resources, which will determine the extent of the DOJ’s discretion when it comes to dismissing suits.
Some lawyers expect that the Supreme Court will decline to curtail the DOJ’s discretionary powers, which would indicate a lesser practical impact on False Claims Act litigation.
In the meantime, another FCA case is gaining momentum. U.S. ex rel. Schutte et al. v. SuperValu Inc. et al. involves the Seventh Circuit’s ruling on whether a grocery/pharmacy chain, SuperValu, had an “objectively reasonable” interpretation of regulations. The Seventh Circuit wrote that there “wouldn’t be liability even if SuperValu never believed its interpretation was correct and had been told by its lawyers that another interpretation was better,” and therefore FCA liability is not permissible. The case is currently before the Supreme Court, and will primarily affect companies who bill Medicaid and Medicare.
While the government has not formally intervened in the case, justices have sought input from the government, and the U.S. solicitor general urged the high court to review the case. This typically indicates the court will hear the case. If so, it’s expected to impact inconsistent state and federal Medicaid and Medicare billing regulations.
If you have a whistleblower claim, a knowledgeable whistleblower attorney at Kardell Law Group can help. Call today to learn more.
