News Archives - Page 22 of 47

Senate committee advances bill strengthening whistleblower law

Nov 22 2021

The U.S. Senate Judiciary Committee recently voted to advance a bill strengthening the False Claims Act, the first significant amendment to the law in more than a decade.

At an Oct. 28 hearing, the committee voted the False Claims Amendments Act of 2021 (S.2428) out of committee, advancing it to the Senate floor for consideration.

The bill boasts bipartisan support. Its cosponsors include Sens. Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vermont).

The False Claims Act was originally signed into law in 1863 to help combat fraud by suppliers to the U.S. government during the Civil War. Today, it remains one of the federal government’s most effective weapons in fighting fraud on the government. It incentivizes whistleblowers, or relators, as they’re known, to report a fraud on the government by rewarding them with a percentage of the amount the government successfully recovers because of the whistleblower’s FCA case. The law has not been amended since 2009.

Liability under the FCA only results from “material” violations. “Materiality” is defined as “having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.” The pending Amendments are a legislative fix made necessary because of judicial interpretations of dicta (non-binding discussion) in the 2016 Supreme Court decision in United Health Services v. United States ex rel. Escobar that are inconsistent with what Congress intended in the law’s materiality standard.

The bill’s sponsors say that judicial interpretations of a single example in the Escobar decision (that the government’s conduct after a claim is submitted is “strong evidence” that a requirement of the FCA is not material to the government) have made it more difficult for the government and whistleblowers to expose fraud on the government. Companies accused of defrauding the government have conducted fishing expeditions to determine if anyone in the government was aware of the alleged fraud, and then argue that if the government was aware of it, the alleged fraud was not material because the government did not act to stop it.

The bill’s sponsors argue that reasoning “fails to take into account that government bureaucrats are highly segmented and often unable to make key decisions for their monolithic organizations . . . nor are they highly motivated to stop fraud. Yet, the Escobar decision has made it all too easy for fraudsters to argue that obvious fraud was not material simply because the government continued payment.”

The bill also provides clarification about when the government may dismiss whistleblower-initiated FCA cases, requiring a hearing before a judge in which the relator has the opportunity to show the reasons for dismissal are arbitrary and capricious.

It also clarifies that the existing anti-retaliation provisions apply to post-employment retaliation.

The bill has the backing of groups including Taxpayers Against Fraud, the National Whistleblower Center, the Project on Government Oversight and the Government Accountability Project.

Taxpayers Against Fraud applauded the committee vote.

“Today, the vast majority of the Senate Judiciary Committee decided to protect taxpayer dollars from fraud,” said Taxpayers Against Fraud President Jeb White. “With our country trying to recover from a pandemic, this is not the time for our elected officials to pander to the demands of the Fraud Lobby.”

Whistleblowers play an important role in rooting out fraud against the government. With over 30 years of experience litigating fraud and employment cases, Keller Grover is uniquely positioned to represent whistleblower clients. The firm has recovered billions for its clients.

We are here to help those who want to report wrongdoing. For advice about how to handle suspected fraud, contact Keller Grover for a free and confidential consultation.

Vaccine mandates in the workplace: What employees should know

Oct 15 2021

As efforts to increase the number of Americans who are vaccinated against COVID-19 ramp up, employees can expect to see more vaccine mandates in their workplaces.

Over the summer, the California Department of Public Health issued orders requiring certain covered health care facilities and school districts to verify their employees’ vaccination status and implement mandatory regular testing of unvaccinated workers.

On Sept. 9, as part of his comprehensive strategy to combat the spread of the coronavirus, President Joe Biden announced that he was instructing the Occupational Safety & Health Administration to develop a rule requiring all employers with 100 or more employees to ensure their workforce is fully vaccinated or require weekly testing. As many as 80 million private-sector employees are expected to be impacted by it.

While the topic of vaccine mandates remains politically and emotionally charged, employees should be aware of their rights under state and federal law.

Although the federal government has broad authority to implement vaccine mandates, employees are entitled to seek health exemptions under the Americans with Disabilities Act and religious exemptions under Title VII of the Civil Rights Act of 1964.

Employees who do not get vaccinated for COVID-19 because of a disability are required to tell their employer that they need an exemption or a reasonable accommodation, according to guidance from the Equal Employment Opportunity Commission. Employees do not need to specifically mention the ADA or the phrase “reasonable accommodation,” however.

The employee and employer then engage in an interactive process to identify potential workplace accommodations that would not impose an undue hardship on the employer, which the courts have defined as having a more than minimal cost or burden.

Under the ADA, an employer can seek more information in support of the exemption from the employee’s doctor or healthcare provider.

When it comes to religious exemptions, Title VII requires employers to accommodate employees whose sincerely held religious belief, practice, or observance is in conflict with a work requirement, unless providing such an accommodation would create an undue hardship.

According to the EEOC, the definition of religion in Title VII is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. The EEOC additionally advises employers to ordinarily assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief, practice, or observance.

If an employee requests a religious accommodation and the employer is aware of facts that provide an objective basis for questioning either the religious nature or sincerity of a particular belief, practice, or observance, the employer would be justified in seeking additional supporting information, the EEOC also advises.

Employers are required under Title VII to thoroughly consider all possible reasonable accommodations, including telework and reassignment.

California state law also sets out protections for employees. Under the California Fair Employment and Housing Act, employers may require employees to receive an FDA-approved COVID-19 vaccine, so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic, provides reasonable accommodations related to disability or sincerely held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity.

If you have questions about obtaining exemptions on religious or health grounds, reach out to us for a free consultation. In more than 25 years litigating fraud and employment cases, the lawyers at Keller Grover have zealously advocated for workers, recovering hundreds of millions of dollars for clients and class members.

Government watchdog flags risk-adjusted Medicare Advantage payments

Oct 15 2021

In September, the U.S. Department of Health and Human Services’ Office of Inspector General issued a report raising concerns that some Medicare Advantage companies inappropriately used chart reviews and health risk assessments, or HRAs, to receive higher risk-adjusted payments.

The OIG found that 20 of the country’s 162 MA companies accounted for a disproportionate share of $9.2 billion in payments from diagnoses that were only reported on chart reviews and HRAs. Of the 20 companies, one company stood out for having 40 percent of the risk-adjusted payments from both chart reviews and HRAs but enrolled only 22 percent of MA beneficiaries. The report did not name the companies.

The OIG recommended that the Centers for Medicare & Medicaid Services provide oversight of the 20 companies, take additional actions to determine the appropriateness of payments and care for the one company that substantially drove risk-adjusted payments, and work to monitor and identify MA companies with a disproportionate share of risk-adjusted payments from chart reviews and HRAs.

Whistleblowers play an important role in rooting out Medicare Advantage fraud, especially when it involves manipulation of risk-adjusted scores to obtain higher reimbursements for either the Medicare Advantage company or the healthcare provider who cares for the Medicare beneficiary. The False Claims Act incentivizes whistleblowers to report fraud on the government by rewarding them with a percentage of the amount the government recovers because of the whistleblower’s case. According to the Taxpayers Against Fraud Education Fund, between 2010 and 2020, the government’s FCA recoveries totaled $40.2 billion. Of that total, about 68 percent came from healthcare-related recoveries.

In August, a Keller Grover client reached a record $90 million False Claims Act settlement with Sutter Health, a healthcare provider, to resolve her alleged claims that the health system submitted inaccurate and unsupported medical diagnosis codes, which inflated its Medicare Advantage reimbursements. We are here to help those who want to report wrongdoing. For advice about how to handle suspected fraud, contact Keller Grover for a free and confidential consultation. Over more than 30 years litigating fraud and employment cases, Keller Grover has recovered billions for its clients.

Biden DOJ to continue focus on health fraud

Sep 14 2021

The U.S. Department of Justice’s Civil Division remains focused on prosecuting healthcare fraud despite a changing of the guard in Washington, a DOJ official told a group of lawyers in late June.

In an address to the American Health Law Association’s Annual Meeting, Michael Granston, deputy assistant general for the DOJ’s Commercial Litigation Branch, emphasized that prosecuting such cases remains a top priority for the department under the Biden Administration.

That’s a continuation from 2020, in which the DOJ both filed and settled a record number of health care fraud cases.

Granston told the organization that of the more than 900 new matters the DOJ opened in 2020, 580 were health fraud matters. Most claims were brought under the False Claims Act, a law originally signed into law in 1863 to help combat fraud by suppliers to the U.S. government during the Civil War.

Today, the Act remains one of the federal government’s most effective weapons in fighting fraud on the government. It incentivizes whistleblowers, or Relators, as they’re known, to report a fraud on the government by rewarding them with a percentage of the amount the government successfully recovers because of the whistleblower’s False Claims Act case.

During his presentation, Granston also said that the DOJ settled 366 False Claims Act cases in 2020, 265 of which were related to health fraud.

Granston emphasized that the department intends to focus on misuse of electronic health records, manipulation of Medicare’s managed care program and improper claims for COVID-19 relief funds.

Like 2020, this year has proven to be an active year for False Claims Act activity.

On July 30, the DOJ announced that it had intervened in six lawsuits in the U.S. District Court for the Northern District of California alleging that members of the Kaiser Permanente consortium violated the False Claims Act by submitting inaccurate diagnosis codes for its Medicare Advantage Plan enrollees to receive higher reimbursements.

Whistleblower cases require lawyers litigating them to prove a fraud while protecting their client who typically learns of the fraud at work. While many law firms have experience dealing with fraud cases or employment issues, few are experienced enough to handle both issues together.

With more than 25 years of experience litigating both fraud and employment matters, Keller Grover is uniquely qualified to represent whistleblowers.

One of Keller Grover’s whistleblower clients recently reached a record $90 million False Claims Act settlement with Sutter Health.

The client, Kathy Ormsby, brought allegations that Sutter committed massive Medicare Advantage fraud over the course of roughly six years. The settlement is the largest False Claims Act settlement against a hospital system involving allegations of fraud on the Medicare Advantage program, and the second-largest reported Medicare Advantage fraud settlement ever.

Ms. Ormsby alleged that Sutter, through several affiliates including the Palo Alto Medical Foundation, intentionally or recklessly submitted inaccurate and unsupported medical diagnosis codes that inflated Sutter’s reimbursements from the Medicare Advantage Program.

The Department of Justice intervened in a portion of Ms. Ormsby’s case relating to the foundation. She continued to pursue non-intervened claims related to alleged fraud at other Sutter affiliates.

The parties reached a settlement, which the parties announced Aug. 30, after Sutter unsuccessfully sought to dismiss both the government’s complaint and Ms. Ormsby’s.

Under the False Claims Act’s whistleblower reward provision, Ms. Ormsby is entitled to receive 15 to 30 percent of the settlement amount for her role in the case.

We are here to help those who want to report wrongdoing. If you want advice about how to handle suspected fraud, contact Keller Grover for a free consultation. We can help you understand your options, applicable protections and steps you should take. In more than 25 years litigating fraud and employment cases, Keller Grover has recovered billions for its clients.

Keller Grover, Constantine Cannon and Kleiman Rajaram Announce Record $90 Million False Claims Act Whistleblower Settlement with Sutter Health

Aug 31 2021

Sutter Health settles closely watched whistleblower lawsuit alleging it violated the False Claims Act by submitting inaccurate and unsupported medical information on tens of thousands of patients enrolled in Medicare Advantage.

SAN FRANCISCO, Aug. 31, 2021 /PRNewswire/ — Keller Grover, Constantine Cannon, and Kleiman Rajaram announce the landmark $90 million False Claims Act settlement against Sutter Health on behalf of their whistleblower client, Kathy Ormsby, over allegations that Sutter committed massive Medicare Advantage fraud over the course of roughly six years.

The settlement is the largest False Claims Act (FCA) settlement against a hospital system involving allegations of fraud on the Medicare Advantage program, and the second largest reported Medicare Advantage fraud settlement ever.

The settlement resolves this case as the U.S. Department of Justice announced its intervention in a series of Medicare Advantage fraud cases in recent weeks. Medicare Advantage (also known as Medicare Part C) has seen its enrollment double over the past decade and is now a $350 billion market annually. More than 41% of all Medicare beneficiaries are now enrolled in Medicare Advantage Plans.

Ms. Ormsby filed her lawsuit in 2015 under the qui tam provisions of the False Claims Act, which permit whistleblowers to file lawsuits to recover taxpayer dollars lost to fraud committed against the government. Ms. Ormsby alleged that Sutter, through several affiliates including Palo Alto Medical Foundation (PAMF), intentionally or recklessly submitted inaccurate and unsupported medical diagnosis codes that inflated Sutter’s reimbursements from Medicare Part C, known as the Medicare Advantage Program.

Medicare Part C authorizes qualified individuals to opt out of traditional fee-for-service coverage under Medicare Parts A and B and enroll in privately-run managed care plans that provide coverage for both inpatient and outpatient services. Unlike the traditional fee-for-service model, Medicare Part C pays for care with monthly amounts based on the health of the patient as documented in diagnosis codes in their medical records, known as a risk adjustment factor (RAF). Ms. Ormsby was employed at Sutter as a RAF Manager.

After investigating Ms. Ormsby’s allegations, including extensive cooperation from Ms. Ormsby and her attorneys, the Department of Justice intervened in the portion of Ms. Ormsby’s case relating to PAMF. As expressly contemplated by the False Claims Act, Ms. Ormsby continued to pursue the non-intervened claims related to the alleged fraud at Sutter’s other affiliates. The settlement followed Sutter’s unsuccessful effort to dismiss both the government’s complaint and Ms. Ormsby’s. The order denying Sutter’s motions to dismiss created important precedent for future False Claims Act cases alleging Medicare Advantage fraud.

Kathleen R. Scanlan of Keller Grover LLP, counsel for Ms. Ormsby, said: “Today’s settlement is a terrific victory for taxpayers. Kathy Ormsby was the catalyst behind the return of nearly a hundred million dollars to a program we all fund to provide cost-effective healthcare to the most vulnerable in our communities, the elderly. Her case also sends a powerful message to other healthcare providers in the Part C program: gaming a patient’s RAF score is fraud, and you can be held responsible for it under the False Claims Act.”

Jeffrey F. Keller of Keller Grover LLP, added: “Kathy Ormsby demonstrated tremendous courage when she came forward to allege a major fraud on the Medicare Part C program by California’s second largest healthcare provider. Representing her in this case has been an absolute privilege. Hopefully she inspires others to follow her lead in reporting allegations of fraud on the government.”

Gordon Schnell of Constantine Cannon, said: “We are all grateful for the heroic efforts of our frontline healthcare workers, especially over the last 18 months fighting COVID-19. This case highlights the other heroic individuals in our healthcare system, people like Kathy Ormsby who risk their career and personal well-being to make sure our healthcare system places patients before profits.”

Mark Kleiman of Kleiman Rajaram said: “This case is an important example of whistleblowers and their lawyers partnering with the government to bring extra expertise and legal firepower to the fight against fraud. This is just how the False Claims Act was intended to work. We hope it serves as a model for more cooperation between the government and whistleblowers in the future.”

Under the False Claims Act’s whistleblower reward provision, Ms. Ormsby is entitled to 15-30% of the settlement amount for her vital role in bringing this matter forward and helping secure this record settlement for the government.

In addition to Ms. Scanlan, Mr. Keller, Mr. Schnell, and Mr. Kleiman, Ms. Ormsby was also represented by Sarah P. Alexander, Hamsa Mahendranathan, and Gary Reilly of Constantine Cannon and Pooja Rajaram of Kleiman Rajaram.

Ms. Ormsby and her entire legal team acknowledge the hard work of the Justice Department’s legal team, including Olga Yevtekhova and Jenny Koh at Civil Frauds, and Chief of the U.S. Attorney’s Office for the Northern District of California’s Civil Division, Sara Winslow, Assistant U.S. Attorney Ben Wolinsky and former Assistant U.S. Attorneys Kim Friday and Erica Hitchings at the U.S Attorney’s Office for the Northern District of California.

For more information about the proceedings in this case, including the complaints and the court’s order on the motion to dismiss, please visit www.medicareadvantagefraud.com

About Ms. Ormsby’s Legal Team
Ms. Ormsby legal team is made up of dedicated whistleblower lawyers who represent whistleblowers under federal and state False Claims Acts as well as the whistleblower programs of the IRS, SEC, CFTC, DOT, and others.

Keller Grover is a San Francisco-based boutique law firm dedicated to representing whistleblowers, employees and victims of fraud. With over 30 years of litigation experience and billions in settlements, the firm’s lawyers are recognized as leaders in their field.

Constantine Cannon has the world’s largest international whistleblower practice, with offices in New York, Washington, D.C., San Francisco, and London. The firm is also home to an antitrust practice that is among the largest and most well recognized in the United States. Other practice areas include commercial litigation, securities, government relations and e-discovery.

Kleiman Rajaram has a national practice representing health care whistleblowers since 1996 and has represented whistleblowers in health and government contracting cases leading to over $650 million in recoveries for fraud against government programs.