Articles in This Issue:
Re-Imagining the Hardhat: Wearable Technology on the Job Site
Integrated Project Delivery from the Owner’s Perspective
Supreme Court Rules that an Award of Statutory Penalty and Attorney Fees is not Mandatory under the Procurement Code upon a Jury’s Finding of Bad Faith
Preparing for an OSHA Interview Under the Current Administration
Residential Construction Liability Case to Watch Closely
Related Information:
Construction Legal Edge, Fall 2016 Read More
Marc Stephen Raspanti will discuss attorney fees in a False Claims Act case at the Annual Taxpayers Against Fraud Education Fund Conference at The Mayflower Hotel in Washington DC. Read More
In a prior post, we blogged about the Third Circuit’s ruling that the political case against Senator Bob Menendez can proceed to trial. Now, in a separate civil matter, the U.S. Court of Appeals for the Eleventh Circuit has denied a rehearing en banc to the Florida opthamologist from whom Menendez allegedly solicited and received bribes.
Vitero Retinal Consultants, a clinic owned by Dr. Salomon Melgen, challenged a Medicare Appeals Council decision that the Centers for Medicare & Medicaid Services overpaid the clinic more than $9 million by extracting multiple dowses of the macular degeneration drug, Lucentis, from a single-dose vial. In September 2014, the U.S. District Court for the Southern District of Florida (Judge Marcia G. Cooke) upheld the Council’s decision. A three-judge panel affirmed, rejecting the clinic’s argument that Medicare has established a practice of reimbursing for other multi-dosed drugs with a “single use” instruction. According to the Court, the “single use” instruction for those other drugs was intended to prevent doctors from administering medications stored past the acceptable eight-hour timeframe. Lucentis, in contrast, has a label that states each vial should, under all circumstances, be used just once, and any excess should be drawn into a syringe and expelled.
The clinic petitioned the Court for a rehearing en banc, arguing in part that the panel’s ruling permitted CMS to supervise the “manner in which medical services are provided . . . ,” in violation of the Social Security Act, by making a determination as to the propriety of administering multiple doses of Lucentis. The Eleventh Circuit (Judge Robin S. Rosenbaum) issued an order denying the petition without an accompanying opinion.
Melgen faces separate criminal charges for the alleged overbilling and bribery of Senator Menendez in the U.S. District Court for the Southern District of Florida.
More White Collar blogs can be found here. Read More
PHILADELPHIA, PA – Marc Stephen Raspanti, Pamela Coyle Brecht and Douglas E. Roberts, attorneys at the law firm Pietragallo Gordon Alfano Bosick & Raspanti, LLP, authored an article titled, “A New Era of Laboratory Fraud, Part 1: Operation LabScam Redux,” that was published in the September 2016 edition of Health Care Compliance Association’s Compliance Today. Part 2 of this article will be featured in the October issue.
An early 1990s government investigation called, “Operation LabScam” returned more than $800 million to the government from clinical laboratories that had billed Medicare and other government healthcare programs for medically unnecessary tests, upcoded tests, and tests that were never conducted and provided kickbacks to physicians who referred patients for the illegal testing. This investigation was supposed to reform the laboratory industry, but now new cases of lab-based fraud and abuse have emerged.
Presently, Biodiagnostics Laboratory Services, Inc. was caught participating in a massive scam orchestrated over a seven-year period that involved bribing doctors in three states to refer patients to the lab for medically unnecessary tests. The scam resulted in a mass prosecution of laboratory executives, associates and physicians. The fines handed out to labs are some of the largest settlements ever recovered under the False Claims Act.
Pietragallo is one of the nations most experienced and respected law firms handling complex qui tam actions brought under the both the federal and the state false claims acts. Mr. Raspanti, a name partner at the firm, is recognized as one of the most successful, skilled and experienced qui tam attorneys in the United States. He has served as lead counsel for whistleblowers in false claims cases that have resulted in over $2 billion in recoveries for federal and state taxpayers. Ms, Brecht, a partner, is a vibrant member of the Qui Tam Practice Group and litigates some of the most complex Qui Tam cases filed in the United States. Read More
Marc Stephen Raspanti, Doug E. Roberts, and Pamela Coyle Brecht authored “A New Era of Laboratory Fraud, Part 1: Operation LabScam Redux” which was published in the HCCA’s Compliance Today September 2016 issue. Part 2 will be featured in the October 2016 issue.
Reprint permission granted.
Related Information:
A New Era of Laboratory Fraud, Part 1: Operation LabScam Redux Read More
Articles In This Issue:
401(k) Fiduciary- Are You Protected From the Risks?
Employers Must Begin to Act: Long-Awaited Updates to White Collar Overtime Regulations Published
Biotech’s Patent Eligibility Problem: The Stringent U.S. Patent Eligibility Standard May be in Violation of International Treaties
Related Information:
Summer 2016 Firm Newsletter Read More
In Whistleblower 31276-13W v. Commissioner, 147 T.C. No. 4 (Aug. 3, 2016) filed last week, the U.S. Tax Court held that criminal fines and civil forfeitures constitute “collected proceeds” for the purposes of determining an award under IRS’s Whistleblower program. Husband and wife whistleblowers – described only as “Ps” as their identities were under seal – reported tax offenses by the targeted taxpayer to the IRS Whistleblower Office which led to a guilty plea for tax evasion and payment of $74,131,694 in tax restitution, criminal fines, and civil forfeitures.
The $74 million collected from the taxpayer included $20 million in tax restitution, $22 million in criminal fines, and $32 million in civil forfeitures. The IRS claimed that criminal fines and civil forfeiture amounts – totaling roughly $54 million – were not “collected proceeds” under the IRS whistleblower program and, thus, were not subject of an award to the whistleblower.
Based on federal laws enacted in 1867, the IRS whistleblower program allows a whistleblower – also termed “claimants” or “informants” – to receive a portion of the money received by the IRS based on the whistleblower’s information. The key provisions of the whistleblower program are found in Section 7623 of the Internal Revenue Code, which allows for either a mandatory or discretionary payment of an award depending on the amount of “collected proceeds.” For instance, under Section 7623(a), a whistleblower may receive a discretionary award of up to 15% of the collected proceeds, capped at $10 million, for tax violations less than $2 million. On the other hand, under Section 7623(b), a whistleblower is entitled to a mandatory award of 15% to 30% of the collected proceeds if the tax violation exceeds $2 million. The IRS determines the amount of the award with limited input from the whistleblower. Only a mandatory payment under Section 7623(b) is subject to review by the U.S. Read More
Senator Bob Menendez’s political corruption case will go forward under a ruling from the U.S. Court of Appeals for the Third Circuit. In a 22-count indictment, the government alleges that, from 2006 to 2013, Menendez solicited and accepted gifts from a Florida opthalmologist in exchange for, among other favors, (1) influencing an $8.9 million enforcement action against the doctor by the Centers for Medicare and Medicaid Services (“CMS”), and (2) encouraging the U.S. Customs and Border Patrol to intervene on the doctor’s behalf in a contract dispute with the Dominican Republic. Menendez allegedly wielded that influence by meeting with and speaking to – either personally or through staff – high-ranking Executive Branch officials, including then-Secretary of Health and Human Services, Kathleen Sebelius, and Assistant Secretary of State, William Brownfield, on the doctor’s behalf.
Menendez moved the U.S. District Court for the District of New Jersey to dismiss the indictment. He argued, in part, that his interventions were legislative acts protected from prosecution by the Speech and Debate Clause of the U.S. Constitution. The district court denied the motion, and the Third Circuit affirmed.
Before the Third Circuit, Menendez contended that the Speech and Debate Clause protects any effort by a legislator “to oversee the Executive Branch.” Conversely, the government argued that legislative attempts to impact executive action are never protected by the Speech and Debate Clause. The Court spurned both “all-encompassing” positions, holding that informal efforts to influence executive action are “ambiguously legislative in nature and therefore may (or may not) be protected legislative acts depending on their content, purpose, and motive.”
Applying “clear error” review to the district court’s factual findings, the Court rejected Menendez’s characterization of his conduct as legislative fact-finding and efforts to change executive policy. The district court found that Menendez’s actions were tied to a specific individual, and the Third Circuit panel determined that ample record evidence supports that conclusion. Read More
Christopher A. Iacono will speak at the Pennsylvania Bar Institute’s CLE titled, “Understanding Pennsylvania Grand Jury Practice.” The CLE will take place in Pittsburgh on July 15 and in Philadelphia on July 21, 2016. Read More
