WHAT ABOUT “TAXPAYERS TO PREVENT AND STOP AND PREVENT FRAUD FOR MEDICARE AND MEDICADE” WHAT ABOUT WILLIS AND WILKINS BEING FIRED FOR NOT WANTING TO BREAK THE HEALTH FRAUD LAWS?

NJ CEPA CLAIM NOW ON FILE…..FALSE CLAIM UNDER APPEAL AND FILED….. WHERE WAS ANY HELP FROM YOUR DEPARTMENT?

The U.S. District Court for the District of New Jersey dismissed May 13 a qui tam action alleging violations of the False Claims Act (FCA) by United Health Group and its subsidiaries. According to the court, the complaint failed to state a claim upon which relief could be granted under the FCA. Relator Charles Wilkins began employment with United Health Group and its subsidiary AmeriChoice in October 2007 as a sales representative. Relator Darryl Willis began employment with United Health Group and AmeriChoice in 2007 as the general manager for Medicare/Medicaid marketing and sales.

In their qui tam complaint, relators allege 11 violations of Medicare and Medicaid regulations. The United States declined to intervene in the case and the relators filed an amended complaint that stated one federal count—violation of 31 U.S.C. § 3729(a)(1)-(3)—and nine state law counts. United Health moved to dismiss under Fed. R. Civ. P. 12(b)(6), arguing relators failed to plead the elements of a “false certification” claim, they failed to plead any anti-kickback violations, and failed to adequately plead a conspiracy. Relators alleged that because United Health entered into a contract expressly certifying that it agreed with all “terms and conditions of payment,” they made a false claim when they submitted claims despite any one of the 11 purported regulatory violations alleged in the amended complaint. Rejecting relators’ express false certification claim, the court found “[not once in the Amended Complaint have Relators identified even a single claim for payment to the Government.”The court also held relators’ implied false certification claim failed. According to the court, relators argued that because United Health agreed to comply with all CMS regulations when it contracted to become a prescription drug plan sponsor, and because at times it was in violation of some regulations, it therefore committed fraud each time it submitted a claim for payment. The court found such a theory of liability overly broad. “If Relators' theory were correct, the FCA would become a federal tort fountain, flowing claims for every trivial violation of Medicare/Medicaid regulations,” the court said. Relators next argued that under the recently enacted Fraud Enforcement and Recovery Act of 2009 (FERA) a relator need only show whether compliance with regulations would have a tendency to influence the government's payment decision. While that argument is true, the court reasoned, “Relators must still show a claim . . . and [t]hey have not done so.” Turning next to relators’ claims based on alleged violations of the Anti-Kickback Statute, the court concluded relators failed to allege “that United Health certified compliance with the Anti-Kickback Act, nor did they allege that such compliance was relevant to the Government’s funding decisions.” The court then declined to exercise supplemental jurisdiction over relators’ state law claims and refused to grant relators leave to amend.

United States ex rel. Wilkins v. United Health Grp. Inc., No. 08-3425 (D.N.J. May 13, 2010).

FCA claim alleging aggressive marketing tactics by health plan provider dismissed
Publication: Health Law Week
Date: Friday, June 4 2010

The U.S. District Court for the District of New Jersey dismissed a qui tam action brought by two former employees of healthcare plan providers alleging violations of the False Claims Act (FCA) arising from excessively aggressive marketing methods. United Health Group Inc., a provider of access to healthcare services, had as its subsidiaries AmeriChoice and AmeriChoice of New Jersey, which each offered Medicare Advantage plans. Charles Wilkins and Darryl Willis (the relators), who were each employed by United Health Group and AmeriChoice, initiated a qui tam claim against United and its two subsidiaries under the FCA alleging numerous violations of Medicare and Medicaid regulations governing administration of the Medicare Advantage plans. The complaint alleged that the defendants engaged in unauthorized and aggressive sales methods in marketing the plans — including the provision of illegal cash payments to providers to induce them to change beneficiaries to AmeriChoice and the provision of illegal kickbacks to doctors for obtaining the names of patients they could call and approach. The defendants moved to dismiss.

The district court concluded that the complaint failed to identify a single instance in which the defendants submitted a false claim to the government for payment as required to prosecute a qui tam claim as relators under the FCA. Under applicable federal appellate court precedent, the absence of such an allegation was fatal to the relator’s false certification claim. The relators’ theory of liability at base was that because United Health agreed that it would comply with all Centers for Medicare and Medicaid Services regulations, and because it was at times in violation of some regulations, it committed fraud each time it submitted a claim for payment. The district court concluded that this contention confused the conditions of participation in a Medicare or Medicaid program with the conditions of payment, and would open the door to a flood of tort claims of a type not contemplated by the FCA. Moreover, the complaint failed to allege that the violation of any regulation was actually relevant to any funding decision. As a result, the complaint failed to state a claim on which relief could be granted and, accordingly, the defendants’ motion to dismiss was granted.

Source: Health Law Week, 06/04/2010

Copyright © 2010 by Strafford Publications, Inc. http://www.straffordpub.com / All rights reserved. Storage, reproduction or transmission by any means is prohibited except pursuant to a valid license agreement.

and yes not all the acts of all the judges were immune. and yes criminal restitution is available to the harmed outside civil system.

as to the transfers from the judges to wife’s (or anyone else) with intention of declaring bankruptcy and avoiding an impeding judgment are clearly avoidable by the us trustee in bankruptcy under the fraudulent transfers provisions. it also may be a crime in and of itself-so i doubt they have done this unless they want to now add to their criminal liability. (surprised a public defender wouldn’t know more about bankruptcy)

Quoted for truth. In what universe are bribes and kickbacks judicial acts stamped with approval by the law? Not this one, I thought, but…

David Nieporent: the people above talking about judges “convicted of crimes” are wrong; there have been no convictions. The defendants offered guilty pleas, but withdrew those pleas when the judge rejected the proposed sentence.

The sentence doesn’t strike me as relevant to the present issues.

David Schwartz: Honest mistakes can’t result in criminal convictions. Any damage to public confidence is done by the criminal judgment.

That seems right to me.

Also, AustinElliott is probably right about the power of criminal restitution. Yeah, if the judges are headed to prison, they might not be able to pay, but 1) the victims would find it less difficult to collect than from a simple civil judgment because there are a lot fewer defenses against criminal restitution judgments; the judge probably had other assets, including a pension, which might be subject to judgment.

That said, I bet if the judges are married, I bet we’d discover that their wives now own everything and they own nothing. There are probably ways to attack those kind of transfers, but I haven’t a clue as to how that would sort out.

That leads to another question: Insurance. My guess is that the victims would love to win on a claim that the judges might be insured for. Generally, your insurance doesn’t cover intentional torts, but smart victims’ lawyers know how to plead a case to try to get it covered.

Drawing the line at action after a conviction seems good on paper but are there any other areas of law where suits can suddenly go ahead after such a conviction? Or would that pose other problems?

When federal enforcement overextends laws originated in limited powers while state enforcement of general powers atrophies, one consequence is that minor-seeming crimes can suddenly get treated as major ones.

But another consequence, as here, is that major crimes can get treated as relatively minor ones.

ShelbyC: I’d imagine the legislature could retroactively lift the immunity, if it chose, no?

I don’t know whether or not a legislature could “lift the immunity” prospectively and without particularity to any individuals, but I very much doubt they could do so rectroactively.

Where do privileges and immunities come from? Some privileges are creations of common law, some are created by statutory enactment and vary state to state. Are there privileges that state courts must recognize, e.g., attorney-client privilege, because they are necessary guarantees of rights established by the Constitution? What about immunities? If Congress thought the Supreme Court has gone too far with its decisions on absolute immunity for judges acting in their official capacities, could Congress make it a qualified immunity (e.g., immunity unless convicted of a crime) or not within its power to do so? I don’t know, but maybe someone who knows will say.

Steve2: Impeachment isn’t a check on anything. It happens too rarely to matter, and its consequences are too slap-on-the-wrist to matter. There’ve been impeached judges serving in Congress, and we’re supposed to treat impeachment as an actual punishment?Pain and fear are the only checks on malfeasance. If impeachment were commonplace for corruption by public officials, and it carried an automatic sentence of public burning, then you could call fairly call it a check.

“impeachment and/or jail time.” How about the second as a deterent to villainy?

David Post: It is very difficult for me to believe that a judge who…takes a bag full of money to dismiss criminal charges against a defendant, is free from all liability (though that is the gist of Judge Caputo’s opinion).

If a judge took a bag full of money to dismiss criminal charges against a defendant, to whom might they be civilly liable absent absolute immunity for what they may do in their official capacity as a judge? Wouldn’t the “victim” be society at large rather than any identifiable individual, unless conviction of the defendant would have set up a lawsuit against them by their victim?

Steve2: There’ve been are impeached judges serving in Congress, and we’re supposed to treat impeachment as an actual punishment?

no?

This is simple. If I grab people and lock them up just to make money I have a whole host of legal problems, including being civilly liable (though that’s obviously far from the top of the list).

Maybe the bar association can be persuaded to write these judges a letter saying, “Shame on you,” or something.

Don’t you think that the prospect of impeachment and/or jail time operates as something of a check on “supervillain power”?

Impeachment isn’t a check on anything. It happens too rarely to matter, and its consequences are too slap-on-the-wrist to matter. There’ve been impeached judges serving in Congress, and we’re supposed to treat impeachment as an actual punishment?

Pain and fear are the only checks on malfeasance. If impeachment were commonplace for corruption by public officials, and it carried an automatic sentence of public burning, then you could call fairly call it a check.

Does it happen elsewhere?

In Texas, is it standard, or unusual?

Does the prosecutor have to make a motion for restitution, or is either automatically a part of the penalty or judge-initiated?

Can “restitution” include money damages for non-monetary harm, e.g. pain and suffering, lost wages for being in jail wrongly, lost reputation?

Jim Lindgren: When I researched the issue over 2 decades ago, my conclusion was that a judge can be convicted for AGREEING to take a kickback and for TAKING a kickback, but NOT for DECIDING or SENTENCING unfairly.

Interesting. If that’s the case in Pennsylvania, then I’m wondering why you still think the decision is wrong (or is it that you find the decision morally wrong but not legally wrong?). I had assumed that since the judge’s sentencing decisions were part of a criminal conspiracy they were inherently illegal and illegitimate. But if the act of determining a sentence based on kickbacks is not actually illegal, that makes the case for lifting absolute immunity much harder.

I think the decision is wrong.

11-B/2O.B4: Just to be clear here for the layman (that’s me). If I read this correctly, a judge can never, ever, ever be held civilly liable for anything he does from the bench? No matter what he does within the (I assume yet-to-be-fully-determined) limitations of his job, his victims can never seek personal redress?If this is the case, that’s some comic-book supervillain power right there.

Don’t you think that the prospect of impeachment and/or jail time operates as something of a check on “supervillain power”?

If this is the case, that’s some comic-book supervillain power right there.

Liz Borden: I also concur with the opinions that a criminal conviction seems a nice bright-line test for vitiating judicial immunity. Perhaps a second level of approval, such as an application to the governor to have a final say after such a conviction before the immunity is officially lifted, would be an appropriate safeguard.

While legislators can impeach judges, I seriously doubt it would past constitutional muster to allow the executive to decide whether “immunity is officially lifted” in the case of a judge convicted of a crime.

Oren: Judith, the suit would be against the judge as a person, not the county/State so it would have no effect on the DA’s budget.

You aren’t saying, are you, that there cannot be an independent suit against the county/State?

If the PA plaintiffs can’t go after the county or state, then they may be out of luck even if it is eventually ruled that the judges should not enjoy absolute immunity for any award of damages for criminal conduct in their judicial roles. It is not improbable that the judges’ assets are substantially less than enough to satisfy any judgments against them. (Note that they were pro se on the appeal.)

AustinElliott: None of the posts have yet mentioned that civil liability is not necessary to compensate crime victims. Upon conviction, the CRIMINAL court can order restitution to the victim, at least in my state (Texas). I did this dozens of times, and it is a lot more powerful than a mere civil judgment. You have a condition of probation that restitution be made, and upon default, proceedings to revoke and return to incarceration are initiated.

Interesting but: i) can criminal courts order restitution to victims in all jurisdictions, including PA?; ii) if defendant is not going to get probation under any circumstances, but is instead headed off to prison for a long time, is the court order enforceable in the same way that a civil award of damages can be enforced?; finally, and perhaps most importantly, iii) any reason to believe that the same absolute immunity that Caputo says shields a corrupt judge from civil liability would not keep a convicted judge of having to make restitution if ordered to do so by a sentencing judge? (Any cases in Texas or elsewhere in which a judge convicted of a crime in the performance of their official duties had to make restitution to their victim? I doubt it, since the appellees didn’t bring any to Caputo’s attention.)

You say you “did this dozens of times,” was that as a prosecutor or as an attorney representative of crime victims? Was it necessary to prove up the victim’s damages in the same way they would have had to do in a civil lawsuit?

Oren: You don’t seriously think police officers and private citizens come across these scenarios at the same rate, do you? Your average Joe is basically never involved in altercations in which he has the legal authority to hold someone by physical force — that alone ought to suggest that these are wildly different matters.

Please tell me in what jurisdiction police officers have absolute immunity? And how often do prosecutors and judges come across those scenarios you refer to that police officers do?

mariner: Off Kilter:When people perceive that the judicial system is corrupt they will eventually vote with their weapons.

Is that meant as a statement of universal application or one with particularity to our present day judicial system in the United States? Do you view our judicial system as a “corrupt” one? Are there other countries with judicial systems free of any trace of taint?

Is there a plausible alternative to a “monopoly” judicial system, and if there is, what would it look like? Two or more Supreme Courts? What does it mean with respect to our judiciary system and the rest of our government, if they are to be seen as making up a “monopoly,” to say “you can vote only with your feet, not your dollars”?

With a monopoly system, you can vote only with your feet, not your dollars.

When people perceive that the judicial system is corrupt they will eventually vote with their weapons.

David Nieporent: Police are only entitled to qualified immunity; it’s not clear why prosecutors and judges should be entitled to absolute immunity.That having been said, the people above talking about judges “convicted of crimes” are wrong; there have been no convictions. The defendants offered guilty pleas, but withdrew those pleas when the judge rejected the proposed sentence.

Thank you for that clarification regarding the status of the criminal cases. I had thought based on what I read in the past that those two malefactors had been sentenced to lengthy terms in prison, but then I wondered why Judge Caputo said nothing about criminal “convictions.”

Dennis v Sparks dealt with the assertion of a 1983 claim against a judge who allegedly took a bribe to grant an injunction, which was later held to have been illegally granted. The Supremes said that judicial immunity shielded him from liability, while those who conspired could be sued for acting under color of law through the judge, in effect their criminal instrument, to deprive the plaintiff of his civil rights. I wonder if the judge in Dennis was ever criminally prosecuted for bribe-taking, and whether the Supremes might have held that judicial immunity was not so absolute as to shield a judge whose judicial acts were in fact criminal conduct if in the case before them the judge had already been convicted or was under indictment. Why the Court didn’t extend itself just a bit to answer what seems to me such an obvious and important question (i.e., the immunity exists not just for allegedly criminal conduct on the bench, but even for proven criminal conduct on the bench), I don’t know. Perhaps the Circuit Court of Appeals will say the immunity is as near to absolute as one can get, but not absolutely absolute when it is settled that the judicial conduct in question was frankly criminal.

It is said that bad facts make for bad law. If that is true, and I don’t think it in doubt as a general rule, then I think it must follow as a corollary proposition that good facts can make for, or promote, an opposite result, which presumably will be “good” law. If any set of facts are up to it, the case of the PA judges should be the one to establish that judicial conduct which is criminal is not entitled to absolute immunity from civil liability. I wouldn’t bet the farm, though, that in the end absolute immunity for judges will not continue to be absolute, notwithstanding that their conduct may go past “egregious” all the way to “criminal.”

Given that judges must ultimately sign off on any civil suits against one of their own profession, there is hardly the risk of a slippery slope here: they can easily throw out cases on summary judgment. It’s not as if the plaintiff’s tort bar tries judicial misconduct cases.