Media Quote Paul Werner on Judge’s Ruling that the FCA’s Qui Tam Clause is Constitutional
Buttaci, Leardi & Werner member Paul D. Werner was quoted by the media in several articles discussing a ruling by a federal judge in Florida who found the False Claims Act’s (FCA) qui tam clause unconstitutional.
In dismissing a case alleging Medicare Advantage fraud, U.S. District Judge Kathryn Kimball Mizelle ruled on October 1, 2024 that qui tam relators, who have been allowed to file lawsuits under the False Claims Act, are essentially self-appointed “special prosecutors” who are acting as “officers of the United States,” and thereby violating the U.S. Constitution’s Appointments Clause requiring such officers to be appointed by the president, a court or the head of a federal department.
Although the opinion in United States ex rel. Zafirov v. Florida Medical Associates, LLC, only applies specifically to the defendants in the Medicare case, it is a significant blow to the legality of qui tam cases Werner says in an article in Healthcare Risk Management in which he is the sole source.
“What made this case different was it was ultimately dismissed by the court under the theory that the False Claims Act is effectively unconstitutional because it has deputized a lay person as an agent of the government in violation of Article II. The judge tells the story of why a relator isn’t just a party to the case, but they are, in fact, an extension of the government and, as an extension, as an officer of the United States, because they have not been appointed in accord with Article II, and allowing them to act as an officer is unconstitutional and invalidates the claim,” he explains.
Werner, who regularly represents physicians and other healthcare providers in the defense of False Claims Act investigations, tells Part B News that the decision has become a hot topic among lawyers in the healthcare industry who are wondering what the impact could be for whistleblower cases in the future.
“Even the fact that this ruling is out there, that this discussion has been reinvigorated and people are actually giving it serious thought suggests it’s something that could run all the way up the ladder. The more this issue gets raised, the more likely it is that we’re going to see a circuit split and the Supreme Court can be swayed to intervene.”
Werner tells McKnight’s Long-Term Care News that he sees a lot of potentially good news in the ruling for operators of skilled nursing facilities.
“While it’s true that the [Florida] case is a stand-alone case that is not necessarily binding on other courts, its mere existence has the potential to give pause to potential whistleblowers, and that pause could be very impactful. Particularly when looked at in conjunction with SCOTUS’ recent striking down of the Chevron defense, skilled nursing facilities may be seeing a healthcare regulatory environment that is moving — albeit slowly — away from the old standard that we all used to live in. The standard that the government — or its effectively deputized whistleblowers — can do whatever they want, whenever they want, and defense attorneys and skilled nursing facilities simply need to deal with it.”
Read the full text of the articles at Healthcare Risk Management, McKnight’s Long-Term Care News and Part B News (subscription required).
- Posted on: Nov 27 2024