Abbott Didn’t ‘Cause’ False Claims Submissions: Jury
A Texas federal court jury has ruled that Abbott did not “cause” providers to submit false Medicare payment claims for off-label use of biliary stents as a whistleblower had alleged. Attorney James Holloway (Ober Kaler) writes in an online blog post that it is important for providers to recognize that liability under the False Claims Act is not limited to entities that present false payment claims to the government. “Entities that do not bill government healthcare programs still may be liable under the False Claims Act if they knowingly ‘cause’ other entities to present false claims to such programs,” Holloway writes.
The Texas judge instructed the jury that Abbott could be found to have caused submission of a claim for Medicare reimbursement if its actions were (1) a substantial factor in inducing providers to submit claims to Medicare for reimbursement and (2) if the submission of those claims for reimbursement was reasonably foreseeable or anticipated as a natural consequence of Abbott’s conduct.
The whistleblower’s position, the post says, was that Abbott caused false claims by providing reimbursement guidance to providers that included instructions about which payment codes to use when seeking reimbursement from government healthcare programs. He said the Abbott guides suggested to providers that they use codes associated with vascular stents to obtain payment for biliary stents, which allegedly were not FDA-approved and therefore were not covered by government programs.
Before the trial, Holloway writes, Abbott filed motions with the court challenging the validity of the whistleblower’s theory that it had caused false claims, and the judge ruled that the question should be resolved by the jury.
“When the time came for the whistleblower to prove his case at trial,” Holloway says, “he was unable to convince the jury that Abbott had knowingly caused providers to submit false claims to the government. The Abbott verdict demonstrates that there may be a large gulf between alleging false claims and proving false claims. While courts may appear increasingly lenient in allowing False Claims Act cases to proceed to trial, providers still may succeed in defending against bogus false claims allegations at trial.”
He suggests that healthcare entities that do not submit payment claims directly to government healthcare programs should evaluate their interactions with providers that do submit payment claims, asking:
Are you providing reimbursement guidance to providers that bill government healthcare programs? If so, is that guidance complete and accurate? Are you periodically reviewing the guidance you provide to assure that it remains accurate and complete? Are you providing guidance according to an approved written format? Are you taking steps to prevent your representatives from offering oral guidance that deviates from the written guidance? Have you evaluated whether the business advantages of assisting customers with reimbursement issues justify the risk of potential False Claims Act liability for ‘causing’ false claims?