George B. Breen, Member of the Firm in the Health Care & Life Sciences and Litigation practices and Co-Chair of the firm’s National Health Care & Life Sciences Practice Steering Committee, in the firm’s Washington, DC, office, was quoted in Law360 Healthcare Authority, in “Trump's Anti-DEI Push Poses New FCA Risks for Healthcare,” by Dan McKay. (Read the full version – subscription required.)

Following is an excerpt:

George B. Breen, a member of the board of directors at Epstein Becker Green and veteran FCA defense lawyer, said the Supreme Court has set a rigorous, demanding standard for materiality in False Claims Act cases. …

"The EO provides that compliance with its requirements is material to the government's payment decision for the purposes of the FCA," Breen said, "but it is unclear how that will play out in the courts."…

"Documentation of compliance with anti-discrimination laws is essential," Breen said. "Records reflecting policy reviews, trainings, and remedial program changes, as appropriate, will be critical in the event of a government investigation or whistleblower claim." …

DEI Enforcement and Loper Bright

The anti-DEI order could have an outsize impact on the healthcare industry, given its role as a frequent target in FCA litigation. Healthcare claims made up roughly 57% of the $2.9 billion recovered in settlements and judgments in the most recent fiscal year. …

"Companies should monitor agency publications for guidance on which initiatives remain permissible under the EO," Breen said. "This is especially true here, given that the new EO's interpretation of DEI activities as unlawful is a drastic shift from the position advanced by the previous administration, both in guidance and regulation."

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