Intermountain: Whistle-blower provisions of False Claims Act are unconstitutional

Salt Lake City-based Intermountain Healthcare argues the False Claims Act's whistle-blower provisions are unconstitutional in a petition asking the U.S. Supreme Court to review a case, according to The National Law Review.

Five things to know:

1. The case at issue was filed in 2012 under the qui tam, or whistle-blower, provisions of the False Claims Act. It alleges Intermountain submitted false claims for medically unnecessary heart procedures performed by a cardiologist at two of its hospitals.

2. The federal government declined to intervene in the case, and the district court granted Intermountain's motion to dismiss the complaint. The district court held that the whistle-blower failed to show that the defendants "knowingly made an objectively false representation to the government that caused the government to remit payment" for the procedures at issue, according to the report.

3. The whistle-blower appealed the decision, and the Court of Appeals for the 10th Circuit reversed the dismissal. The appellate court acknowledged the whistle-blower is required to allege "the who, what, when, where and how of the alleged claims," but the court excused certain deficiencies in the whistle-blower's pleadings. The court said the deficiencies were caused by the whistle-blower's "inability to obtain information within the defendant's exclusive control."

4. Intermountain is now asking the Supreme Court to weigh in on two issues. First, the health system is asking the Supreme Court to resolve a split between the circuits over a Federal Rule of Civil Procedure that requires fraud lawsuits to include specific allegations of fraud. Second, Intermountain is asking the Supreme Court to examine whether the qui tam provisions of the False Claims Act are constitutional.

5. Intermountain argued that the qui tam provisions of the False Claims Act are unconstitutional because they allow whistle-blowers to act as prosecutors beyond the control of the executive branch. The health system asked the Supreme Court to revisit its decision in Vermont Agency of Natural Resources v. Steven, issued in 2000. In that decision, the Supreme Court declined to weigh in on whether whistle-blower suits violate the Appointments Clause of Article II of the Constitution. 

Access the full National Law Review article here.

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