Bass, Berry & Sims attorney Scott Gallisdorfer was recently featured in a Law360 Healthcare Authority article examining constitutional challenges to the False Claims Act’s (FCA) qui tam provisions following a significant ruling from the U.S. Court of Appeals for the Eleventh Circuit. The court reversed a lower court decision that had found the FCA’s whistleblower mechanism unconstitutional, preserving a key enforcement tool used in healthcare fraud cases.
In the article, Scott discussed the concerns many healthcare organizations have regarding qui tam litigation. While acknowledging that whistleblowers can provide valuable information to assist government investigations, he noted that defending FCA cases can be costly and disruptive even when allegations ultimately lack merit. “Even a meritless case takes a lot of time and money and effort to get it dismissed, and that can be a real distraction,” Scott said. “I think that that’s the biggest concern from healthcare providers and other organizations that face risk in these areas.”
The article explores the broader implications of the Eleventh Circuit’s decision, which allows whistleblowers to continue bringing FCA actions on behalf of the government. However, the constitutional debate is far from settled, with additional challenges pending in other federal appellate courts and ongoing scrutiny of the qui tam framework.
Looking ahead, Scott observed that the government would have multiple tools available to identify and investigate potential fraud if the whistleblower mechanism were invalidated. “I don’t think it’s going to be the end of fraud enforcement,” he said. “There are of course other ways that the government can get information from insiders without having to rely on qui tam lawsuits.”
The full article, “Anti-Fraud Health Weapon Survives Constitutional Fight,” was published on September 8 in Law360 Healthcare Authority and is available online (subscription required).