Abortion access, False Claims Act among current health litigation

By Susan Rupe

Abortion access, false claims, telehealth, discrimination and patient inducements are among the health care issues with pending litigation in the court system.

A panel from Manatt Health gave a rundown on some of the “must watch” litigation transforming health care in 2023 during a recent webinar.

Abortion access

The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization returned the decision to restrict or protect abortion to the states. Since then, several other court challenges also restricting abortion access have worked their way through the courts.

“It has been only 10 months since Dobbs came down but those have been a very busy 10 months and there has been lot of litigation,” said Ronald Blum, partner in Manatt Health’s litigation group. “What we’ve seen so far is aimed at limiting and restricting access to abortion.”

He cited three noteworthy cases:

Alliance for Hippocratic Medicine v. FDA, in which a federal district court in Texas attempted to block the Food and Drug Administration’s approval of mifepristone, a drug used in medication abortion. The Supreme Court issued a stay in the order, keeping mifepristone available, until the Fifth Circuit court hands down an opinion on the merits of the suit.
Silva v. Noyola, in which a man brought a wrongful-death lawsuit in Galveston County, Texas, in March, claiming three women helped his now-ex-wife obtain abortion-inducing medication to conceal her pregnancy from him.
Gomez v. Braid, in which a Texas judge threw out a lawsuit filed against an abortion provider who intentionally violated a state law allowing anyone to bring a lawsuit against someone who “aids or abets” an abortion after about six weeks of pregnancy. The judge ruled that the plaintiff had no standing in the case as he had no connection to the case and was not harmed by it.

Seven states have adopted abortion shield laws, Blum said, protecting the right to obtain an abortion, while 15 states have adopted total or near-total abortion bans.

“We shouldn’t lose sight of the fact that for patients and providers, these are real-life, real-world issues,” Blum said. “The patchwork of laws that exist make obtaining medical care and providing medical care difficult.”

False Claims Act

John Libby, partner with Manatt’s investigations, compliance and white collar defense group, gave a rundown on the growing use of the False Claims Act as an enforcement tool. The False Claims Act imposes liability on persons and companies who defraud governmental programs, including Medicare. It is the federal government's primary litigation tool in combating fraud against the government.

In 2022, Libby said, the U.S. Department of Justice recovered $2.2 billion in 351 settlements and judgments by the federal government and whistleblowers. Of that amount, 77% – or $1.7 billion – was related to the health care industry. These recoveries also led to additional recoveries for state Medicaid programs.

Significant health care areas covered by FCA cases, Libby said, include:

Unnecessary services and substandard care.
Medicare Advantage fraud.
Drug pricing.
Kickbacks.
COVID-19 relief fraud.

Telehealth litigation

The COVID-19 pandemic saw an increase in the use of telehealth, particularly for mental health services. With that increased use came an increase in litigation involving telehealth, said Kaitlyn Dunn, Manatt Health counsel.

The Office of Civil Rights’ report to Congress stated that hacking and IT incidents affected 500 or more individuals in 2021, as the increased use of telehealth led to increases in cybersecurity attacks and HIPAA breaches.

In addition, the Office of Inspector General found several concerns about telehealth billing practices and medical necessity. Those concerns include:

Unnecessary services and substandard care.
Duplicate claims.
High-volume billing.
Inappropriate or ineligible services.
Durable medical equipment and lab tests.

Another area of potential litigation surrounding telehealth, Dunn said, is that all licensed providers must comply with the laws and regulations governing the practice of their profession in their state, including when delivering care via telehealth.

Providers could face legal action if:

They do not comply with state licensure requirements.
They do not obtain required consent.
They do not advise a patient that in-person care is necessary, if it is deemed medically necessary.
They prescribe medications or order tests without having sufficient information to do so.

Anti-discrimination laws

Tension exists between the First Amendment right to freedom of religion and anti-discrimination laws, said Craig Rutenberg, partner with Manatt’s health care litigation group.

This tension sometimes involves patients or employees who want services, procedures, treatments, drugs or benefits that are in conflict with an Affordable Care Act-regulated entity’s sincerely held religious beliefs. It also may involve laws and regulations that require that entity to provide patients or employees with such services or treatments that conflict with the entity’s religious beliefs.

In a health care setting, these issues usually relate to transgender care and related services, as well as abortion and reproductive services.

Patient inducements and referrals

The litigation threat around patient inducements and referrals involves someone paying an incentive to refer a patient to a provider or provides free medical supplies or pays someone’s health insurance premiums, said Ileana Hernandez, partner in Manatt Health’s litigation group. The problem is that providing free or discounted services or items poses a risk under federal statutes, she said.

Federal health care regulators have been concerned about the impact of inappropriate incentives in health care, Hernandez said. Offering inducements to patients or paying referral fees for patients may result in overusage, biased decisions concerning care, and increased costs to government programs and private payers.

Following the enactment of the ACA, she said, federal regulators and private payers saw a major uptick in inducements made to patients and payments made by and to financially interested third parties. Federal regulators and private payers have increasingly been challenging improper inducements.

Susan Rupe is managing editor for InsuranceNewsNet. She formerly served as communications director for an insurance agents' association and was an award-winning newspaper reporter and editor. Contact her at [email protected]. Follow her on Twitter @INNsusan.