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Qui Tam Quarterly

Uncertain Relief: Navigating CARES Act Provider Relief Fund Guidance and False Claims Act Risks

Date: 3 November 2020

This edition of the Qui Tam Quarterly focuses on the potential False Claims Act (FCA) risk areas faced by health care provider recipients of payments from the Provider Relief Fund (PRF) created by the CARES Act, as well as potential defenses to FCA actions based on some of the PRF “Terms and Conditions” and related “FAQs” issued by Department of Health and Human Services (HHS). In particular, the article considers the extent to which (1) ambiguous or changing guidance and/or regulations may create enforcement problems where recipients interpreted the regulations in good faith, (2) the materiality element may not be satisfied where HHS knows about provider non-compliance with certain guidance requirements but declines to request reimbursement or initiate an investigation, and (3) the government and relators will be able to establish falsity through relying on the informal and frequently updated FAQ guidance documents. The article also considers whether the government may more aggressively move to dismiss qui tam actions brought by relators in marginal cases pursuant to the guidelines in the so-called “Granston Memo.”  

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ABOUT QUI TAM QUARTERLY

Qui Tam Quarterly is a quarterly publication authored by members of the health care fraud and abuse team highlighting emerging and pressing issues in health care fraud and abuse, including litigation and governmental investigations involving the False Claims Act, the Stark Law, the Anti-Kickback Statute, and other health care fraud related statutes.

Members of our team are regular contributors to Triage: Rapid Legal Lessons for Busy Health Care Professionals, a podcast created by K&L Gates to inform our clients and friends of the firm about the latest developments in health law. Subscribe to Triage through iTunes or Google Play.

This publication/newsletter is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer. Any views expressed herein are those of the author(s) and not necessarily those of the law firm's clients.

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