FCA Relators Can’t Self-Represent, 5th Circ. Rules

The Fifth Circuit on Thursday affirmed the dismissal of a False Claims Act suit alleging a theft scheme at a federal prison facility, ruling that because they act on behalf of the government, relators cannot represent themselves in FCA cases.

A district court had correctly found that plaintiffs like James Brooks can only represent themselves pro se in cases involving their own interests and must obtain legal representation when acting as a qui tam relator, because FCA cases are ultimately meant for the benefit of the federal government, the three-judge panel ruled in a brief opinion.

“As this is a matter of first impression in this court, we echo the holding of the district court that, regardless of the right of anyone to represent himself pro se, he is not representing himself when he brings an action solely as relator for another non-intervening party, including the United States, and therefore cannot do so pro se," the judges said. read more »

Whistleblower’s Physician Kickback Allegations Cost Pacific Alliance Med Center $42M

PAMC Ltd., and Pacific Alliance Medical Center Inc., the owners of Pacific Alliance Medical Center, an acute care hospital just north of downtown Los Angeles, have reached a settlement in a False Claims Act case brought forward by a whistleblower.

The LA hospital operators will pay $42 million to resolve allegations that they violated the Anti-Kickback Statute and the Stark Law, defrauding both Medicare and MediCal (California’s Medicaid).

Whistleblower Paul Chan’s FCA Lawsuit Alleges Kickbacks

The settlement includes a $31.9 million payment to the Federal Government, and a $10 million payment to the State of California. Pacific Alliance’s settlement with the government includes no admission of guilt. Whistleblower Paul Chan is set to receive a reward of $9.2 million for his efforts in uncovering the wrongdoing. read more »

Court Refuses to Permit Government to File Statement of Interest or Amicus in Non-Intervened False Claims Act Cases 

Counsel who regularly defend False Claims Act (FCA) cases often encounter “statements of interest” filed by the government in non-intervened FCA cases. Though not a party to the case since it has declined to intervene, the government files these advisory pleadings to argue its interpretation or position on some issue of the False Claims Act, frequently to the detriment of the defendant’s position.

For example, in US ex rel Nevyas v. Allergan, Inc., Dkt 66, Case No. 2:09-CV-432 (E.D. Pa), we see a typical example of a government statement of interest. In Allergan, the defendant moved to dismiss the relator’s second amended complaint in a non-intervened FCA case, and challenged the relator’s claim that it violated the Anti-Kickback Statute, 42 USC §1320a-7b(b) (AKS). Presumably, the relator’s response to the motion to dismiss was not adequate in the eyes of the government because the government filed its statement of interest to address “an argument” raised in the defendant’s motion to dismiss with which it disagreed. Claiming it “has a keen interest in the interpretation of [the FCA and the AKS],” the government submitted its statement of interest to “refute [Defendant’s] argument that the Court should narrowly construe the AKS.”

For its authority as a non-party to submit a brief, the government in Allergan relied on 28 USC § 517 and the fact that it “remains a real party in interest in this matter.” Section 517 does not reference statements of interest or filing briefs on behalf of the United States; rather, it only provides: read more »

Veterans Journal: VA deals with problems at New Hampshire VA Medical Center

Secretary of Veterans Affairs David Shulkin announced actions the department took on July 16 to respond to whistleblower concerns detailed in an article in that day’s Boston Globe Spotlight article.

Reacting to recent news about the quality of care, or lack thereof, at the VA Medical Center in nearby Manchester, N.H., Secretary of Veterans Affairs David Shulkin announced actions the department took on July 16 to respond to whistleblower concerns detailed in an article in that day’s Boston Globe Spotlight article.

The VA Office of the Medical Inspector and the VA Office of Accountability and Whistleblower Protection are being sent in to conduct a top-to-bottom review of the Manchester VAMC, including all allegations contained in the Globe article. Also, the department has removed the director and chief of staff at the facility, pending the outcome of the review.

Dr. Shulkin said, “These are serious allegations, and we want our veterans and our staff to have confidence in the care we’re providing. I have been clear about the importance of transparency, accountability and rapidly fixing any and all problems brought to our attention, and we will do so immediately with these allegations.” read more »

Linde's Lincare Will Pay $20 Million to Settle Fraudulent Billing Allegations. Whistleblowers Receive $11 Million

Linde AG-owned Lincare, one of the largest respiratory therapy service providers in the US, will pay $20 million to resolve allegations that it fraudulently billed the government for oxygen and respiratory equipment.

The settlement resolves a whistleblower lawsuit filed by four former employees of the company. Originally filed in 2009 and 2010 as two separate suits by two pairs of Lincare insiders, the filings were consolidated into one in March 2014.

According to the text of the consolidated and amended lawsuit, “Lincare falsely and fraudulently billed the government for services and equipment that were non-reimbursable, were not medically necessary, were never provided, or were provided in direct violation of the applicable standards and regulations governing Lincare’s provision of oxygen equipment and services. As a result of these knowingly false and fraudulent claims, Lincare received payments from the United States of America that were inflated, excessive, unearned, and improper.” read more »

Drug spending in U.S. tops the world. Translation: No pricing-headache relief soon

What will it take for pharma to get the drug-pricing monkey off its back? A research report this month laid out the pricing landscape, tensions and problems pharma companies face. At the top of the list? The unrivaled access U.S. patients enjoy comes at a cost.

Annual per capita spending on prescription drugs in the U.S. is $1,112, about one-third higher than neighboring Canada, which ranked second in the world at $772 spent per person every year. Germany ($741), France ($646) and Spain ($547) rounded out the top five in per capita drug spending, according to a report from Datamonitor Healthcare.

And there's little sign of a slowdown. The price of branded prescription drugs in the U.S., at invoice level, increased at double-digit rates from 2012 to 2015. The hike was more than 9% in 2016, according to the report.

With so many variables, a clear and simple—or imminent—solution to drug pricing is unlikely. Along with the tradeoff between access to the latest medications and their cost, the pricing quagmire covers the current administration’s still-in-the-works plan, expensive breakthrough drug launches, the ongoing rebate debate, still-rising price hikes on existing medicines, and patients’ broader exposure to drug prices through increased deductibles and copays. read more »

Hard Questions for a Company at the Center of the Opioid Crisis

The immense pay packages bestowed on corporate chieftains are often said to reflect feats of management that enrich company shareholders. An executive’s masterly performance justifies the compensation, in other words.

But what about managers who take home bounties amid leadership failures that harm other stakeholders? Should shareholders give these executives a pass because the company’s stock price rose on their watch?

That’s the question facing investors in the McKesson Corporation, the nation’s largest drug distributor and a company that finds itself at the center of the nation’s opioid epidemic. McKesson is holding its annual shareholder meeting on Wednesday, and investors will express their views on the company’s rich pay packages. They will also vote on a proposal urging the company to install an independent board chairman; currently, John H. Hammergren, McKesson’s chief executive, also heads its board. read more »