Michigan Attorney General Dana Nessel joined a bipartisan coalition in asking the U.S. Supreme Court to protect publicly funded programs from fraud by adopting a robust and fair reading of the False Claims Act (FCA). The coalition filed its brief in two Supreme Court cases that consider when a contractor can be held liable under the FCA for overbilling Medicaid.
The FCA is an important law enforcement tool that both the states and the federal government use when a contractor “knowingly” provides false billing information for some publicly-funded programs – including Medicaid, which covers more than 91 million low-income people across the country. A federal appellate court held that two retail chain pharmacies did not act “knowingly”
under the FCA even if they ignored official guidance on Medicaid billing; intended to, and did in fact, submit false information; and reaped a windfall in public Medicaid funds through overbilling.
“As the state’s top law enforcement officer, I take seriously my duty to protect the integrity of taxpayer funded programs like Medicaid,” Nessel said. “This duty will be made more difficult if providers are allowed to avoid liability under the FCA. The vast majority of the Medicaid fraud recoveries we bring back to Michigan ($10 to $25 million or more each year) rely on adherence to the federal and corresponding state false claims acts. I stand firmly with my colleagues in asking the U.S. Supreme Court to review the lower court’s erroneous ruling, which will have the practical effect of
immunizing defendants who purposely make false claims.”
The brief argues that the Supreme Court should reverse the lower court rulings, which depart from the FCA’s text and will make it harder to protect public funds from fraud. Instead of the lower court’s unworkable rule, the brief explains why the Supreme Court should interpret “knowingly” under the FCA to allow evidence of what a provider knew or reasonably should have known based on relevant guidance issued by state Medicaid agencies.?
The brief was led by Connecticut Attorney General William Tong, and joined by Nessel and the attorneys general of Alaska, California, Colorado, Delaware, District of Columbia, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Vermont, Washington, and Wisconsin.
The cases are United States ex rel. Tracy Schutte, et al v. SuperValu, Inc. (No. 21-1326) and United States ex rel. Thomas Proctor v. Safeway, Inc. (No. 22-111).
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