Archive | Qui Tam

“We have to pass the bill so that you can find out what is in it” (continued)

I mean this in less snarky way than the title of this post suggests, but I continue to be surprised by some of what worked its way into the health care reform bill.

Today the Supreme Court held 7-2 in an opinion by Justice Stevens that 31 U.S.C. 3730(e)(4)(A), a provision of the False Claims Act that bars qui tam actions that are based upon the public disclosure of allegations of fraud against the government in (among other things) “a congressional, administrative, or [GAO] report, hearing, audit, or investigation,” includes state and local administrative hearings, audits, or investigations, and not just federal ones.   But tucked away in a footnote is notice that the holding of the case (Graham County Soil & Water Conservation District v. United States ex rel Wilson, 08-304), will have limited application going forward:

On March 23, 2010, the President signed into law the Patient Protection and Affordable Care Act, Pub. L. 111–148, 124 Stat. 119.  Section 10104(j)(2) of this legislation replaces the prior version of 31 U.S.C. §3730(e)(4) with new language.  The legislation makes no mention of retroactivity, which would be necessary for its application to pending cases given that it eliminates petitioners’ claimed defense to a qui tam suit. See Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939, 948 (1997).

The health care reform law changes the relevant text to provide for dismissal of a qui tam action based on a public disclosures “in a congressional, [GAO], or other Federal report, hearing, audit, or investigation.”  Thus, it essentially overrules today’s decision.  The amendment also eliminates the old language, under which a court would not have jurisdiction over a case based on a public disclosure, to simply state that a court shall dismiss an action, unless [...]

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