Sixth Circuit Holds That Government Audit Insufficient to Trigger FCA’s Public Disclosure Bar

American Health Lawyers Association

Daniel C. Fundakowski, an Associate in the Health Care and Life Sciences practice, in the firm’s Washington, DC, office, authored an alert for American Health Lawyers Association’s Health Care Liability and Litigation Practice Group, titled “Sixth Circuit Holds That Government Audit Insufficient to Trigger FCA's Public Disclosure Bar.”

Following is an excerpt:

The FCA's "public disclosure bar" precludes a whistleblower from bringing allegations that have already been made public unless the whistleblower is an "original source." The district court found that there was a public disclosure of the alleged fraud, "apparently accepting" Erlanger's argument that the information was publicly disclosed "through the investigations, oversights and audits conducted by the government, consultants, attorneys and contractors." In reversing the lower court, the Sixth Circuit held that the government's knowledge and investigation of the inpatient allegations—without a disclosure to the wider public—was insufficient to constitute a public disclosure. The court noted that the district court "seems to have concluded, at least implicitly, that the disclosure was public simply because it occurred in the course of an administrative audit or investigation."