What is the Patient Protection and Affordable Care Act?
On March 23, 2010, the President signed into law the healthcare
overhaul bill, known as the Patient Protection and Affordable Care
Act ("PPACA"). The PPACA includes a number of amendments to
the False Claims Act. The most significant amendment to the
Act relates to the "public disclosure bar." The False
Claims Act's public disclosure bar prevents would-be
qui tam relators from profiting from disclosures of fraud that
have already been exposed, and that have reached the public
Unlike the old bar, the new public disclosure bar in the PPACA
does not consider information disclosed in state and private
proceedings to be "publicly disclosed." Now,
information is considered publicly disclosed only if it is
disseminated in federal proceedings, reports,
hearings, audits, or investigations.
And with respect to federal criminal, civil or administrative
trials and hearings, the government now must actually be a party to
the proceedings where the information is disclosed. (As with
the previous version of the statute, any information disclosed
through news media is still considered "publicly disclosed."
Thus, actions based on information that is substantially the same
as news media reports will continue to be barred.)
Graham County Soil and Water Conservation District v. U.S. ex
Just one week after the PPACA's enactment, the Supreme Court
decided Graham County Soil and Water Conservation District v.
U.S. ex rel. Wilson, 130 S. Ct. 1396 (March 30,
2010). The 7-2 Graham majority resolved a
circuit-split by holding that whistleblowers cannot file lawsuits
based upon information that is publicly available in state and
local administrative reports, audits, and investigations. The
PPACA legislatively overrules Graham for all new cases
by specifically amending the FCA to bar only those actions based on
disclosures from federal sources or the news media. Reversing
what was the law in several circuits and would have been the law of
the land, PPACA now grants qui tam relators the power to initiate
lawsuits based on information in state and local government
publications. It is not entirely clear yet what happens when
the information appears in state and local government publications
after PPACA for conduct that occurred pre-PPACA.
False Claims Act Broadens
PPACA also broadens what was previously the single exception to
the public disclosure bar, called the "original source"
exception. Under the previous version of the Federal False Claims Act, an
action based upon information that was "publicly disclosed" was not
barred if the person had "direct and independent" knowledge of the
information underlying the allegations. Now, the
original source exception covers two types of whistleblowers.
First, a person who disclosed to the government the
information on which the allegations or transactions in a claim are
based before it was publicly disclosed can still proceed with a
lawsuit based under the False Claims Act. Second, a person
who has knowledge that is "independent of and materially adds to"
the publicly disclosed allegations or transactions,
and who has provided the information to the government
before filing a lawsuit under the False Claims Act, is
excepted. While the exact meaning of these terms will likely
be the subject of interpretation by the courts, it is clear that
they are intended to broaden the "original source" exception.
Finally, the amendments to the False Claims Act included in
PPACA for the first time give the government considerable
discretion in deciding whether a case otherwise barred by the
public disclosure may still go forward. Under the previous
law, the bar was considered "jurisdictional," which meant that a
court was required to dismiss a qui tam
case if it fell within the public disclosure bar. Under
the new version, the government may oppose dismissal
of the case, even if it falls within the public disclosure bar, and
thus permit the qui tam lawsuit to go forward. This gives the
government the ability to assess the circumstances, including how
the dismissal of the qui tam relator's case will affect the
government's ability to fully prosecute the accused.
Contact Us To Learn More
If you have discovered evidence of government fraud,
contact an experienced False Claims Act attorney before blowing the
whistle. You may be entitled to a substantial reward and the legal
protections afforded to whistleblowers under state and federal
laws. The attorneys of Berger & Montague are nationally
recognized experts in Whistleblower/Qui Tam actions with over a
decade of experience pursuing these complex fraud cases. For more
information or to schedule your confidential consultation, use the
form on this page to contact us, or call us at
For further reading:
The SEC Whistleblower Program under the Dodd-Frank and the Foreign
Corrupt Practices Act
Provision of the False Claims Act
What is the
False Claims Act?
What is Qui Tam Law?
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