Does violating requirements amount to fraud under the False Claims Act (FCA) when the requirements allegedly violated are unclear? There is currently a circuit split and petitions for review pending to the Supreme Court as to when the purported violation of ambiguous requirements can give rise to a FCA suit. In light of this, district courts appear to be taking a cautious approach and avoiding ruling on this issue at the motion to dismiss stage. This is despite that whether a requirement is ambiguous often is a matter of law (proper for deciding on a motion to dismiss for failure to state a claim), not a matter of fact (to be considered at later case stages).
One recent example of this cautious district court approach is a January 3, 2023, ruling by the Western District of New York where the court predominantly denied the Medicare Advantage Organization (MAO) Defendants’ motion to dismiss the government’s complaint in United States ex rel. Ross v. Indep. Health Corp., No. 12-cv-299S, 2023 WL 24055 (W.D.N.Y. Jan. 3, 2023).
In this case, the government alleged the MAO Defendants implemented (1) a retroactive medical records review program to search for additional diagnoses codes and (2) an addenda process whereby medical providers were “nudged” to retroactively add diagnoses to medical records. The relator and government alleged these services resulted in the Defendants collecting and retaining higher payments from Centers for Medicare & Medicaid Services (CMS) than...
Federal authorities say a California vascular practice and its physician agree to pay more than $6.73 million to resolve allegations that unnecessary interventional procedures were billed to Medic...