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Second Circuit Dicta Concerning FCA “Alternate Remedy” Provision May Create Perverse Incentive for Government to Increase Criminal Prosecution

The Second Circuit's decision in U.S. v. L-3 Communications EOTech, Inc., included ominous dicta pertaining to the "alternate remedy" provision of the False Claims Act (FCA), which may lead to an increase in government determinations to prosecute FCA matters criminally, rather than joining or "intervening" in an ongoing civil suit. The "alternate remedy" provision reads, in pertinent part, that "the Government may elect to pursue its claim [under the FCA]...

SCOTUS Declines to Revisit Third Circuit Decision Containing Expansive Construction of Public Disclosure Bar

On October 7, 2019, the Supreme Court (SCOTUS) denied certiorari in the matter of Pharmerica Corporation v. U.S. ex rel. Silver, leaving on the books the Third Circuit decision which held that the False Claims Act's (FCA) public disclosure bar "is not implicated . . . where a relator's non-public information permits an inference of fraud that could not have been supported by the public disclosures alone[.]" This holding arguably...

Is Your MAO Effectively Capturing and Processing Medicare Advantage Risk Adjustment Data?

Effectively identifying and processing Medicare Advantage (MA) risk adjustment data is no simple matter – it requires extensive experience in data science, claims and encounter data analytics, actuarial science, CMS regulatory and sub-regulatory guidance, and up-to-date, HIPAA-compliant risk adjustment software platforms. Without these skills and technology, valuable MA risk adjustment data that would otherwise be submittable to CMS and generate increased revenues for your organization may be overlooked, ignored or...

Why Providers Need to Carefully Negotiate the Complex Payment and Penalty Provisions Under Shared Savings Agreements

 "Shared savings agreements" or "physician incentive plans" are agreements between provider groups and carriers or the government wherein bonus payments are paid, or penalties assessed, pursuant to a contractually agreed upon formula designed to measure quality-based performance over a given time period. As these relatively new agreements can be highly technical and the mechanics of the bonus calculation quite opaque (often by design), provider groups tend to take the bonus...

PHARMACY ALERT: New York OMIG Denies Pharmacies Enrollment in Medicaid Based on Private Payor Denials

Frier Levitt has been contacted by an alarming number of pharmacies who have had their applications for enrollment in the New York State Medicaid Program denied by the New York Office of the Medicaid Inspector General (OMIG) based on the pharmacies having, at one point or another, "failed to meet the criteria to be a participating provider" with certain private payors. By all appearances, this is an unconstitutional delegation of...