Sean McKenna in Law360: Medicare Billing Records Give FCA Whistleblowers New Ammo


Medicare's new plan to divulge reams of physician-specific billing data will further strengthen the anti-fraud arsenal of whistleblowers and researchers, according to experts who say the transparency will fortify False Claims Act suits and put additional pressure on regulators to curb overpayments.

The precise impact on public policy and FCA litigation will depend on the type of information that federal regulators release and how eager they are to release it in the face of physician privacy concerns. But lawyers say that pulling back the curtain on previously confidential records can put only more pressure on providers, especially when viewed in conjunction with a soon-to-debut database under the Physician Payments Sunshine Act, which catalogs fees given to doctors by drug and device firms...

Nonetheless, there are good reasons to believe the new transparency will leave providers more exposed. One possible result is that some whistleblowers get just enough extra information to convince the government to intervene in their suit — a crucial factor in successful FCA cases.

"An otherwise [borderline] complaint might all of a sudden become more appealing," said Sean McKenna, a partner at Haynes and Boone, LLP.

Excerpted from Law360, January 24, 2014. To view full article, click here (subscription required).

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