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621493052-300x195Chicago – The Department of Justice issued an internal memorandum on January 10, 2018, which was soon released publicly and can be found here. The memorandum was quickly praised by the False Claims Act defense bar, but a reasoned review of the memorandum shows that the plaintiff bar should also welcome the policy statements outlined in the memorandum.

First, let’s establish a little background. The FCA is a statute that allows people to file a lawsuit on behalf of the government alleging that someone submitted a false claim or false or fraudulent demand for payment. These are typically Medicare or Medicaid claims, Department of Defense claims, or infrastructure projects. A person filing the lawsuit is known as a “relator” and is eligible to receive an award if the claim is successful. A relator is generally entitled to an award of between 15 and 30% of the amount the government recovers.

After a claim is filed the government conducts an investigation and decides whether to join the lawsuit by intervening or not join the lawsuit and file a declination in which case the person who filed the lawsuit can pursue the lawsuit on the government’s behalf without the government’s assistance. Either way, the government is always the real party in interest and must approve all settlements or dismissals and has the ability to seek dismissal of a case under 31 U.S.C. 3730(c)(2)(A).

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In 2014, the American Hospital Association sued the Secretary of Health and Human Services to compel HHS to clear the delay in the Medicare administrative appeals process and to comply with the statutory ninety-day time frame for Administrative Law Judge hearings. (The August 11, 2017, court of appeals opinion can be found here.)

Congress directed HHS to establish an appeals process for denied Medicare reimbursement claims and directed that the appeals process be completed within certain time parameters. The entire appeals process was designed to take less than one year to complete and set time limits on each stage of the appeal: 60 days for stage one, the redetermination; 60 days for stage two, the reconsideration; 90 days for stage three, the hearing before the ALJ; and 90 days for stage four, the hearing before the Medicare Appeals Council. The fifth stage is judicial review in a district court. (For more information about the appeals process click here and here.) For many years the appeals process functioned within these parameters.

Beginning in 2001, there was an increase in appeals. This increase, which was dramatic and unexpected, was caused by a large number of new beneficiaries, and providers appealing almost every denied claim. Additionally, and perhaps most importantly, under the Medicare Recovery Audit Program, HHS hired recovery audit contractors known as RACs to review every claim paid and identify overpayments. The RACs then sought to recoup those overpayments, which could have been paid to the provider years ago. When a RAC identifies an overpayment, the provider could either pay it or file an appeal. Many providers decided to file an appeal, and appeals increased from 56,600 in fiscal year 2011, to 607,402 appeals waiting for an ALJ hearing in June 2017. Although providers can skip this level and escalate the appeal, providers forfeit certain rights and have been reluctant to do so. (See, How to Advance your Appeal After a Reconsideration by a QIC.)  Without some form of relief, the backlog is expected to grow to over 950,000 by 2021 and some claims which have already been filed are expected to take over 10 years to complete.

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If you are appealing a reconsideration issued by a Qualified Independent Contractor (QIC) and you have not received a decision within 90 days you may have the right to have your appeal escalated to the next level before the Medicare Appeals Council.

An appellant who has properly filed a request for hearing before an Administrative Law Judge (ALJ) and whose appeal remains pending after 90 days may with certain restrictions, file a request with the Office of Medicare Hearings and Appeals (OMHA), to escalate the appeal to the Medicare Appeals Council. 42 C.F.R. 405.1016. If the request meets the requirements for escalation and the ALJ, or attorney administrator, does not issue a decision, dismissal order, or remand order, within five calendar days, or within 5 days from the end of the 90-day ALJ decision if the request is filed prematurely, the OMHA, will send a notice that the QIC reconsideration decision will be the decision that will be reviewed by the Council. The Council then has 180 calendar days to issue a decision, or dismissal or remand order. 42 C.F.R. 405.1106

The Council may take any of the following action subsequent to an escalation: Issue a decision based on the record before the QIC, and any additional information entered on the record before the ALJ; conduct any additional proceedings that the Council determines are necessary to issue a decision; remand the case back to the OMHA for further proceedings; dismiss the request for review because the appellant does not have the right to escalate the appeal; or dismiss the request for a hearing if the ALJ or attorney adjudicator could have dismissed the request. 42 C.F.R. 405.1108 Continue reading

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The Centers for Medicare and Medicaid Services (CMS) part of the Department of Health and Human Services (HHS) issued a final rule on January 17, 2017 titled “Medicare Program: Changes to the Medicare Claims and Entitlement, Medicare Advantage Organization Determination, and Medicare Prescription Drug Coverage Determination Appeals Procedures,” (Final Rule), that went into effect March 20, 2017. This Final Rule revised the appeal process before Administrative Law Judges. The Final Rule in its entirety can be found here. The new rule is designed to reduce the number of appeals and the time needed to adjudicate appeals before an ALJ, part of the Office of Medicare Hearings and Appeals, and the next level of appeal held before the Medicare Appeals Council, part of the Departmental Appeals Board. HHS hopes to eliminate the appeal backlog by fiscal year 2020.

The Final Rule will permit a Medicare Appeals Council’s decision to have precedential value to provide consistency, reduce resources need to adjudicate an appeal, and possibly reduce the number of appeals. It also allows attorney adjudicators to decide appeals without a hearing, review dismissals by a Qualified Independent Contractor (QIC), issue remands to CMS contractors, and dismiss a request for hearing when requested by the appellant. These changes will reduce the time that ALJs spend on administrative matters and allow more resources for conducting hearings. The Final Rule will also limit the number of CMS contractors that can participate in a hearing, improve administrative efficiency, by for example allowing an ALJ to vacate its own dismissal, and conduct most hearings via telephone (unless the appellant is an unrepresented beneficiary). Continue reading

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Back in 1995, the United States Postal Service (USPS) sponsored the cycling team headed by Lance Armstrong, its top rider. In 2000 Lance Armstrong won the Tour de France and the USPS renewed its sponsorship of the team so long as Armstrong remained part of it. The USPS paid about $32 million to the team from 2000 to 2004. Problems arose however after it was revealed that the riders used performance-enhancing drugs (PEDs) which was contrary to the contract with the USPS which required the riders to comply with the rules of professional cycling and be drug free.

In 2010, Armstrong’s former USPS teammate Floyd Landis filed a False Claims Act lawsuit against Armstrong[i] and others accusing them of violating the False Claims Act because of their PED use and their failure to disclose it.

In 2013, Armstrong admitted to his use of PEDs. The United States is now seeking almost $100 million in damages. Continue reading

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Medicare and its regulation are replete with abbreviations, acronyms, and content specific phrases. The link below contains a list of 75 and growing. I hope you find this list helpful. If you have any additions, please contact me and I will include them. Mike

Abbreviations – Health Care



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Twenty dollar bills isolated against white background.
When Medicare conducts an audit of a provider and concludes that an overpayment has occurred it will attempt to recoup that overpayment.  This article will discuss the overpayment appeals process.

There are five levels of appeal, each of which is considered a completely new examination of the audit and determination.  Unlike a judicial appeal in which the appellate court often reviews the lower court only for plain error or an abuse of discretion, these Medicare appeals are independent determinations and not tied to the prior overpayment determination.

After an initial finding of an overpayment, the first level of review is called a redetermination. A redetermination is performed by an independent Medicare Administrative Contractor (MAC). Redeterminations must be filed within 120 days of the initial determination.  Redetermination decisions should be issued within 60 days.

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wheelchair-1430696One Medicare policy that has seen a boom in litigation, both civil and criminal, in the past few years relates to services being provided to allegedly homebound Medicare beneficiaries.  Homebound status is defined in the Medicare Benefit Policy Manual and states that for a patient to be eligible to receive home health services under Medicare, a physician must certify that the patient is confined to the home.  To be considered homebound, the Medicare beneficiary must be unable to leave the home without the assistance of a supporting device, special transportation, or the assistance of another person.  A person could also be considered homebound, if leaving the home is contraindicated.  In addition to the previous conditions, there must also be a considerable and taxing effort to leave the home.  In other words, just because someone uses a cane does not mean that the person is homebound for purposes of Medicare home health services.

Although, there can be some differences of opinion as to whether there is an inability to leave the home to such an extent that it would take a considerable and taxing effort, a person who leaves their home to run errands or to engage in social activities will unlikely be considered homebound.

Below is the definition from the Medicare Policy Manual.  If you have further questions, contact me by clicking here.  Violations of this requirement can result in civil or criminal prosecutions, or recoupments among other possibilities.  If you would like information about defending a Medicare Audit, or investigation click here. If you are aware of a provider falsely certifying Medicare beneficiaries as homebound, you may be able to file a claim and receive an award under the False Claims Act.  For more information about the False Claims Act, click here.

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man-with-a-megaphone-1-1378633-sChicago – Not surprisingly in light of the recent charges and convictions of home health agencies (HHA) and related entities in the Chicago area and throughout the country, the Department of Health and Human Service, Office of Inspector General, (HHS-OIG) issued an Alert reporting that the OIG found home health services susceptible to fraud.


HHAs have been accused of violating the anti-kickback statute by paying for referrals, while doctors have been accused of receiving kickbacks for these referrals. The government may consider any payment arrangement a kickback if the payment is not fair and reasonable.  Another area of concern for the HHS-OIG was the billing of home health services for patients who were not homebound, as defined in the regulations, billing for care plan oversight services that were not performed, and upcoding patient encounters.  One key factor found by the HHS-OIG was that doctors participating in these schemes were usually not the Medicare beneficiary’s primary care physician.


If you have information about fraud, waste, or abuse of a government program, including Medicare/Medicaid click here, or if you need representation as a result of a government audit or investigation, click here.  Mike Rosenblat, at 847-480-2390, or

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medical-doctor-1314902-sIn a resounding victory for whistleblowers, the Supreme Court, in Universal Health Services, Inc. v. United States et al. ex rel Escobar et al., found that a defendant could be liable for violating the False Claims Act under a theory of implied false certification.  This holding supports the proposition that when a defendant submits a claim for payment, but fails to disclose its non-compliance with a law, rule, or regulation, that defendant can be found liable under the False Claims Act, if the failure to disclose is misleading and material.  The Court found that the government’s decision whether or not to make a requirement a condition of payment is not a prerequisite to liability.  If it was, the Court reasoned, the government could simply make all rules and regulation a condition of payment.  Instead the Court in a well-reasoned opinion, focused on materiality, and in doing so rejected the Seventh Circuit’s holding in United States v. Sanford-Brown, Ltd.

The Supreme Court first held that the implied false certification theory can create liability when a defendant makes misleading omissions, such as its violation of a regulation, if that omission relates to the goods or services provided. The court went on to explain that under common-law fraud, half-truths, not providing an important fact, is a misrepresentation, and a defendant must prevent his words from being misleading. However, the Court also held that to create liability, a defendant’s omission must be material, and a defendant must have the required knowledge or scienter.  Knowledge is defined as actual knowledge, deliberate ignorance, or reckless disregard of the truth.

Materiality and fraud are closely aligned and the False Claims Act is a fraud statute.  The False Claims Act itself defines materiality as “having a natural tendency to influence, or be capable of influencing.” 31 U.S.C. § 3729(b)(4). Materiality means that the omission, or misrepresentation, of compliance with a regulation must be important to the government’s decision to pay the claim.  The Supreme Court gave the following examples of materiality: