Life science companies, health care providers, and government contractors will be at risk for significantly larger penalties due to substantial increases to False Claims Act (FCA) penalties and civil monetary penalties (CMPs). These penalty increases cover a broad range of health care violations, including the Stark Law, the Anti-Kickback Statute, the Emergency Medical Treatment and Labor Act (EMTALA) and the Health Insurance Portability and Accountability Act (HIPAA). The Department of Justice (DOJ) and the Department of Health and Human Services (HHS) recently announced these “adjustments” to account for inflation – in one case, accounting for more than 40 years of inflation. In particular, the new FCA penalties are nearly double, and CMPs for both the Stark Law and the Anti-Kickback Statute have increased approximately fifty percent.
David S. Greenberg
David Greenberg is a partner in Arent Fox LLP’s national Health Care practice group. He advises the health care industry, with a particular focus on health care providers and suppliers, helping them navigate through an exceedingly complex and volatile regulatory and enforcement environment.
David focuses his practice on counseling health care clients on regulatory issues related to the Affordable Care Act, the False Claims Act, the Anti-Kickback Act, the Stark Laws, state licensure, self-disclosures, reimbursement and payment, and participation in Medicare, Medicaid, and other government health care programs. He is experienced in conducting internal investigations and representing health care companies in state and federal audits, enforcement actions, False Claims Act investigations, and litigation.
Additionally, David represents health care providers and suppliers embroiled in significant reimbursement and coverage disputes and litigation with managed care companies, health insurers, third-party administrators, FEHB plans, Medicare Advantage plans, and employer-sponsored health plans concerning compliance with ERISA, COBRA, the Medicare Secondary Payer Act, the FEHB Act, the Medicare Advantage program, and state insurance laws.
David regularly speaks and writes on legal issues impacting the health care industry. He is lead editor of the Practising Law Institute treatise Health Care Litigation and Risk Management Answer Book.
David has represented dialysis companies, hospitals, home health providers, ambulatory surgery centers, pharmaceutical companies, hospices, and long-term care providers. His recent work has included:
- Representing a dialysis company in a multi-million dollar arbitration against a health insurer.
- Defending a hospital system in a US Department of Justice (DOJ) investigation.
- Advising a hospice company regarding an FBI investigation into its billing practices.
- Counseling a national home health company on regulatory, reimbursement, and compliance matters related to its participation in state Medicaid programs.
- Representing a national dialysis company in multi-million dollar reimbursement disputes with various health insurers, health and welfare plans, and Medicare Advantage plans.
- Representing surgery centers and medical device makers in reimbursement disputes with health insurers.
- Conducting internal investigations on behalf of multiple skilled nursing facility chains concerning compliance with Medicare program billing and payment rules.
- Representing a dialysis corporation in an intervened False Claims Act suit.
- Representing a national hospice company in False Claims Act litigation.
- Counseling a nonprofit community health organization on HIPAA, privacy and contracting issues.
- Acting as outside general counsel to a startup, health care technology company.
Prior to joining Arent Fox, David worked in the DC office of a leading national law firm where he specialized in antitrust and health care litigation. While at that firm, he litigated complex cases in state and federal court involving health insurers, innovator pharmaceutical companies, generic pharmaceutical companies, and pharmacy benefit managers.
Upon completion of law school, David worked as an attorney for the Civil Division of the DOJ. While at DOJ, he was a member of the small team of lawyers responsible for administering the federal September 11, 2001, Victim Compensation Fund.
David is a member of the American Health Lawyers Association and the Health Law Section of the American Bar Association.
Publications, Presentations and Recognitions
David speaks and publishes frequently on issues pertaining to the health care industry, particularly on the False Claims Act and health care litigation. He is lead editor of the Practising Law Institute treatise Health Care Litigation and Risk Management Answer Book.
While in law school, David was an articles editor and on the executive board for the ABA publication, The Business Lawyer.
David’s speeches include:
- “Navigating Reverse False Claims and Medicare Overpayments Amid Strict Enforcement of the 60-Day Rule,” Strafford Webinars, December 17, 2014
- “Working with the C-Suite and Outside Counsel,” George Washington University Healthcare Corporate Compliance Program Capstone Presentation, September 30, 2014
- “Working with the C-Suite and Outside Counsel,” George Washington University Healthcare Corporate Compliance Program Capstone Presentation, May 13, 2014
- “Hot Trends in Reimbursement,” Presentation at Los Angeles County Bar Association Healthcare Compliance Symposium, October 10, 2013
David’s publications include:
- “Government Pulls Out All the Stops to Investigate and Prosecute Medicare Fraud Against Sacred Heart Hospital Executives in Chicago,” Bloomberg BNA, April 15, 2015
- “The Civil False Claims Act,” Health Care Litigation and Risk Management Answer Book 2015, Practising Law Institute, 2015
- “Managed Care Disputes and Litigation,” Health Care Litigation and Risk Management Answer Book 2015, Practising Law Institute, 2015
- “US Department of Justice’s False Claims Act Recoveries Reach a Record $5.7 Billion in Fiscal Year 2014,” Health Care Counsel, December 23, 2014
- “Health Care Industry: Expect More DOJ Criminal Prosecutions on the Horizon,” Health Care Counsel, September 22, 2014
- “The DOJ Intervenes in ‘Reverse False Claims Act’ Case,” Health Care Counsel, July 11, 2014
- “Recent Developments in OIG Exclusion: Health Care Corporate Executives in the Crosshairs,” Bloomberg BNA Pharmaceutical & Industry Report, June 14, 2013
- “CMS Clarifies Sequestration Does Not Mandate Cuts in Medicare Advantage and Prescription Drug Benefit Payments to Contracted Providers, Suppliers, and Pharmacies,” Arent Fox Legal Alert, May 3, 2013
- “Protecting the Out-of-Network Option,” ASC Focus, November/December 2012
- “Federal Courts Reject Violations of DME Supplier Standards As Basis for False Claims Act ;Liability,” Arent Fox Legal Alert, November 7, 2012
- “The False Claims Act Amendments: The Curious Conundrum of Retroactivity,” The Health Lawyer, v. 22, No. 5, June 10, 2010
- “The False Claims Act: Recent Amendments and their Implications for Higher Education,” NACUANOTES, v. 8, No. 8, April 16, 2010
- “Two Pending False Claims Act Cases Highlight Government Theory that Failure to Comply with DME Supplier Standards Renders Medicare Claims False,” Arent Fox Legal Alert, December 22, 2009
- “Tenth Circuit Decision Raises Doubts About False Claims Act Liability Predicated on Provider’s Certifications of Compliance in Annual Cost Reports,” Arent Fox Legal Alert, November 2, 2009
- “Legal Actions Against Commercial Insurers For Improper Manipulation Of Out-Of-Network Reimbursement Rates to Impact Healthcare Providers,” Health Lawyers Weekly, February 2009
Life Beyond the Law
When David is not working, he likes to escape DC for the mountains and lakes of northern New Hampshire with his wife and two kids. He also maintains an unhealthy allegiance to DC’s longsuffering sports teams (although the Nationals have offered him a bit of relief recently).
Blog Posts by David S. Greenberg
In a highly anticipated decision, the United States Supreme Court issued a unanimous opinion in Universal Services, Inc. v. United States ex rel. Escobar that threw out existing law related to the implied certification theory of liability under the False Claims Act.
Lower courts were split as to whether FCA liability existed for implied certifications of statutes, regulations, and contractual requirements that are conditions of payment and the existing law focused on whether representations were express or implied and whether they were specifically tied to a condition of payment. Background analysis regarding the case can be found here.
In a surprising move that could dramatically impact government enforcement actions against life science companies, the health care industry, and government contractors, this week a federal board increased federal False Claims Act penalties by more than 100 percent.
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Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.