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A Golden Ticket: The Effects of Long Term Care Regulations on False Claims Act Cases

On January 11, 2018, Judge Steven Merryday, United States District Court judge for the Middle District of Florida, vacated a False Claims Act (“FCA”) judgment for $350 million against 53 nursing facilities.1  The purported FCA violation was for failure to maintain comprehensive care plans and other documentation as required by Centers for Medicare and Medicaid Services (“CMS”) regulations. The whistleblower’s claim relied on the implied false certification theory endorsed by the U.S. Supreme Court in Escobar.2  What the whistleblower did not contemplate was Judge Merryday’s astute materiality and scienter analysis.  Importantly, Judge Merryday’s analysis illustrates a workaround for long term …

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