Insights

Washington – November 9, 2023: Michael Shaheen, former trial attorney in the U.S. Department of Justice Commercial Litigation Branch’s Fraud Section, has rejoined Crowell & Moring. Shaheen returns as a partner in the firm’s Health Care Group where he will focus on False Claims Act cases and healthcare fraud and abuse. He will also work closely with members of the firm’s White Collar and Regulatory Enforcement Group.

The United States Court of Appeals for the First Circuit issued a pivotal ruling earlier this week, finding that in order to establish falsity in a False Claims Act (“FCA”) case premised on Anti-Kickback Statute (“AKS”) liability, the kickback must have been the “but-for” cause of the submission of the claim. The court’s decision hinged on the meaning of the phrase “resulting from” within the 2010 amendment to the AKS, which provided that a claim that includes items or services “resulting from” a violation of the AKS constitutes a false or fraudulent claim for purposes of the FCA. The meaning of “resulting from” for purposes of establishing such FCA liability has been hotly debated by courts. The First Circuit now joins the Sixth and Eighth Circuits in adopting this stricter but-for standard, while the Third Circuit has opted for a much looser approach.

Senator Joni Ernst (R-IA) has issued a mandate to the Biden Administration: stop the spending spree with the remaining dollars in the CHIPs for America Program.  Senator Ernst’s missive is a direct response to Commerce Secretary Gina Raimondo’s push to have every employee in the Department of Commerce work overtime to spend billions of dollars in CHIPs funding before President Biden leaves office—a push that has already resulted in almost as much spending since the November 5thelection as was spent in the preceding two years since the CHIPs Act was passed.  Senator Ernst warned, the success of the CHIPs initiative “requires thoughtful planning and strategic spending, not binge buying shopping sprees by bureaucrats shoveling billions out the door before” Biden’s term expires. 

The Office of the Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) published the General Compliance Program Guidance (GCPG) on November 6, 2023. The GCPG provides updated descriptions of the seven elements of an effective compliance program that health care entities have long relied upon. The new guidance also includes recommendations to conduct annual internal risk assessments, to consider quality of care as a component of the compliance program, and to emphasize the importance of a board’s and executive leadership’s oversight of compliance.

A panel of attorneys representing government agencies, relators, and defendants discuss developing precedent surrounding the element of scienter in False Claims Act litigation. Topics of discussion will include recent circuit court precedents such as the AseraCare, Supervalu, and Allergan Sales decisions, and the impact these decisions have on how civil fraud claims are alleged, investigated, and defended.

Join us for this year’s Health Care Ounce of Prevention Seminar (HOOPS), a webinar series where our experienced practitioners will provide insight into a number of exciting topics. This year’s seminar will focus on topics such as Remote Health Care and Telemedicine, Mental Health Parity, Health Care Litigation, and Health Care Trends for 2022. 

In this episode, hosts Michael Shaheen and Jason Crawford discuss the Department of Justice’s recently announced False Claims Act (FCA) recovery statistics for fiscal year 2022. The podcast breaks down last year’s FCA activity—which included a record number of new matters—and considers what the trends could portend for fraud enforcement in the year to come. "Let's Talk FCA" is Crowell & Moring’s podcast covering the latest developments with the False Claims Act.

In this episode, hosts Michael Shaheen and Tully McLaughlin cover part one of a discussion about the Department of Justice’s authority to dismiss qui tam complaints brought by relators.  The podcast: (1) outlines the government’s authority under the statute and the caselaw; (2) discusses how the Department of Justice wields that authority; and (3) describes the false controversy between the Department and Senator Grassley on the scope of that authority. "Let's Talk FCA" is Crowell & Moring’s podcast covering the latest developments with the False Claims Act.

In this episode, hosts Payal Nanavati and Joe Records talk to partner Michael Shaheen, who recently served as a Trial Attorney with the Fraud Section of the DOJ. Michael sheds some light on what potential FCA targets can do to understand and rebut DOJ’s use of data analytics to pursue FCA investigations. Payers, Providers, and Patients – Oh My! is Crowell & Moring’s biweekly health care podcast, discussing legal and regulatory issues that affect health care entities’ in-house counsel, executives, and investors.