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From Health Law Daily, February 17, 2017

AG veto power absolute in voluntary FCA settlements

By Patricia Hammond, J.D.

The U.S. Attorney General possesses an absolute veto power over voluntary settlements in False Claims Act (FCA) (31 U.S.C. §3729) qui tam actions, the U.S. Court of Appeals for the Fourth Circuit has held. A South Carolina district court’s ruling that the government—despite not intervening in a qui tam action involving various operators of elder care facilities that allegedly fraudulently billed Medicare for services that were not provided, or were provided to patients who were not eligible for them—possesses unreviewable veto authority over the action’s proposed settlement, was therefore affirmed on interlocutory appeal (U.S. ex rel. Michael v. Agape Senior Community, Inc., February 14, 2017, King, R.).

Unreviewable veto power. In affirming the lower court’s unreviewable veto power decision (see Between a rock and a hard place: U.S. won’t help with trial but blocks settlement, June 29, 2015), the Fourth Circuit relied on the plain language of 31 U.S.C. §3730(b)(1)—that a qui tam action "may be dismissed only if the court and the Attorney General give written consent to the dismissal and their reasons for consenting." The Fourth Circuit noted that §3730(b)(1) does not overtly require the government to satisfy any standard or make any showing reviewable by the court. Further, the Attorney General’s absolute veto authority is entirely consistent with the statutory scheme of the FCA, according to the Fourth Circuit, because—even where the government declines to intervene—the United States is the real party in interest in any FCA suit.

Statistical sampling. Former employees of the elder care facilities operators also challenged the district court’s finding that statistical sampling would be improper to prove their case (see AHA urges Fourth Circuit to strike down false claims extrapolation, March 28, 2016), but the Fourth Circuit concluded that this aspect of the former employees’ appeal was improvidently granted. The district court concluded that the use of statistical sampling evidence could sometimes be permissible, but was not appropriate in this case based on the particular facts and evidence. This conclusion, however, did not raise a pure question of law that is subject to interlocutory appeal.

The case is No. 15-2145.

Attorneys: Christy Marie DeLuca (Christy DeLuca, LLC) for United States ex rel. Brianna Michaels and Amy Whitesides. Deborah Brereton Barbier (Deborah B. Barbier, LLC) for Agape Senior Community, Inc., Agape Senior Primary Care, Inc. and Agape Senior Services, Inc.

Companies: Agape Senior Community, Inc.; Agape Senior Primary Care, Inc.; Agape Senior Services, Inc.

MainStory: TopStory CaseDecisions FCANews FraudNews QuiTamNews MarylandNews NorthCarolinaNews SouthCarolinaNews VirginiaNews WestVirginiaNews

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