Bass, Berry & Sims attorney Scott Gallisdorfer was quoted in an article published by McKnight’s Long-Term Care News examining the Eleventh Circuit’s pending decision in United States ex rel. Zafirov v. Florida Medical Associates that could determine whether the False Claims Act’s (FCA) whistleblower (qui tam) provisions are constitutional. The decision could potentially limit private individuals’ ability to pursue fraud cases on the government’s behalf and set up a Supreme Court review that could significantly reshape healthcare fraud enforcement nationwide.
Commenting on a potential split among the federal circuit courts that could result from the Eleventh Circuit affirming the district court and striking down the qui tam provisions, Scott said in that scenario there would be “virtual certainty” that the case would head to the Supreme Court. He noted, “At that point you’d basically have qui tam lawsuits no longer available in an entire area of the country.”
In discussing the potential consequences of qui tam lawsuits no longer being viable, Scott said “Even if the government was enforcing the healthcare fraud laws more vigorously, what you would see less of are just purely meritless cases that right now are going forward brought by whistleblowers.” Even if these cases are later dismissed, Scott noted, “There [are] costs associated with getting them dismissed. They’re distractions. And, they can affect transactions. They can be major headaches for healthcare companies even if they don’t ultimately have any merit.”
While any Supreme Court decision striking down the qui tam provisions would have a “profound” impact, Scott added that “There’s a good chance that you would see a response from Congress in that instance. They would try to amend the False Claims Act in some way to overcome these constitutional problems. I think you also could see the government direct more resources at direct enforcement of the False Claims Act. There could be new whistleblower programs developed, kind of like we see in other contexts like with the SEC.”
The full article, “Decision in whistleblower case could put False Claims Act’s fate in Supreme Court’s hands,” was published March 17 by McKnight’s Long-Term Care News and is available online.