December 14, 2017

Developing Story: DOJ Will Dismiss Qui Tam Cases Lacking Merit (Part II)

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Discussion of a challenge by the DOJ press office regarding reporting on the remarks made by the DOJ’s Michael Granston during a recent HCCA conference.

EDITOR’S NOTE: This is a follow-up to David Glaser’s reporting on this policy change in the Nov. 2 edition of the RACmonitor e-News.

In a surprise announcement of a seemingly significant policy change, the U.S. Department of Justice (DOJ) said that when it concludes that a qui tam case lacks merit, it will file a motion to dismiss the case rather than allowing the relator to continue. 

The announcement was made by Michael Granston, director of the Commercial Litigation branch of the Fraud Section in the DOJ’s Civil Division, during the recent Health Care Compliance Association’s (HCCA’s) Health Care Enforcement Compliance Institute in Washington, D.C. I reported the story on RACmonitor Nov. 2.

Under the False Claims Act, when a relator or whistleblower files a qui tam action, the government has 60 days to determine whether it takes over the litigation or declines to intervene in the case. Under the latter circumstances, the relator must determine whether to proceed using the relator’s own resources. (Note that courts nearly always extend that 60-day limit.) 

When I heard the aforementioned statement during Mr. Granston’s presentation, I thought it was a major development. In the 1990s, a colleague and I worked on a qui tam False Claims Act (FCA) case in which we persuaded the government to intervene and dismiss. We were subsequently told that due to a policy change, it would never happen again. 

The DOJ press office, however, felt that I misunderstood Mr. Granston’s remarks and wanted me to run a correction. The press officer noted that Mr. Granston said that the DOJ would “continue” to dismiss meritless FCA claims brought by relator/whistleblowers. The press officer explained that the government’s willingness to intervene and dismiss FCA cases is longstanding, and that Mr. Granston was articulating current policy, not describing a change. 

I asked the press officer if there were examples of situations in which the government had intervened to dismiss qui tam cases in the healthcare industry. Her initial response was that it did not matter there were any examples. 

Since it clearly does matter, I pushed hard on this point. I ultimately received a list of eight cases in which the government had intervened to dismiss a qui tam FCA case. Several of these cases were highly unusual, and totally unrelated to the healthcare industry. My favorite was a case asserting that since Barack Obama wasn’t eligible to be president, all of his actions violated the False Claims Act. Another of the cases involved an argument that torture by the Central Intelligence Agency (CIA) resulted in submission of false claims. The bottom line is that most of the cases weren’t really applicable to the discussion. 

But I concede that there were two notable cases involving healthcare fraud, one from 2011 and one from 2013. I was not previously aware of either.

So it is certainly possible that the Department’s policy changed sometime in the past. Whenever the policy was reversed, I appreciate that the DOJ made the change. When a case lacks merit, it takes time from the court and money from defendants who need to defend it. 

While as a defense lawyer I have a financial self-interest in a case being allowed to proceed, my sense of justice vastly outweighs that incentive. Clients should not need to retain counsel to defend a frivolous case.

We have no way of knowing how often the DOJ will exercise its option to intervene and dismiss a case. It is possible that this will remain a rarity.  But the fact that it is an option is good news for both the industry and society in general.  

David M. Glaser, Esq.

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and is a member of the RACmonitor editorial board.

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