In the middle of everything else that is going on, I neglected to mention yet another amendment to the federal False Claims Act. As you are all no doubt aware, on March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act, Pub. L. 111-148, 124 Stat. 119 (PPACA), popularly known as “the health care bill.”
To say the very least, the bill was the most debated and discussed law passed by Congress in many years. However, falling outside the mainstream discussion and debate were several important amendments to the federal False Claims Act.
An in-depth discussion of these issues would be beyond the scope of this blog post, (and indeed one of the things that has kept me from blogging in recent weeks has been my work on a detailed law review article for George Mason University’s Journal of Law Economics and Policy that does discuss many of these developments in detail). In broad outlines the most significant changes (at least in my humble opinion) were as follows.
(1) The power to dismiss a case based on the public disclosure bar (found at 31 U.S.C. 3730(e)(4)(A))is back in the hands of the Department of Justice, which is where it belonged all along. The new public disclosure bar reads “the Court shall dismiss an action or claim under this section, unless opposed by the Government, if substantially the same allegations or transactions alleged in the action or claim were publicly disclosed.” The underlined portion is new, and gives the DOJ the power to decide if the relator beings something to the table such that he or she should be allowed to share in the recovery.
(2) The “original source” exception to the public disclosure bar is expanded by the PPACA to include any relator who can add “knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions … “
(3) PPACA makes it clear that retention of overpayments by health care providers is unlawful, and lays down strict new guidelines for the return of overpayments. I will have quite a bit to say about this in my law review article, so stay tuned for that.
In addition to the above changes, there are a number of other significant changes. For example, the recent Supreme Court decision in Graham County v. U.S. ex rel Wilson, No. 08-304, Slip Opinion issued on March 30, 2010) is legislatively overruled, and now relators can, in some instances, bring cases based on information disclosed in state and local government publications.
The last year has seen big changes indeed for the FCA–all of them for the better.