Trump-Appointed Federal Judge Delivers Key Legal Tool Used to End Health Care Fraud

Conservative politicians often use the risk of health care fraud to raise fears about investing in public health care programs like Medicaid and Medicare. The funny thing is, their judges seem to be working hard to cheat Again common. On September 30, 2024, a Florida judge appointed by Trump issued a sweeping decision to weaken an important anti-fraud tool. Let us explain what happened.

Since 1863, the False Claims Act (FCA) has been an important tool of the Federal government to combat fraud, including health care fraud. To be clear, the vast majority of health care fraud does not involve people usage health care; the main fraudsters are private medical providers and contractors who inflate, exaggerate, or simply perform medical services they bill the federal government for. But under a key provision of the FCA, a whistleblower can file a lawsuit (known as a I’m tam case) for the federal government to recover losses due to fraud.

Imagine a hospital employee who discovered the hospital was billing Medicare with false medical records, and had the courage to bring a lawsuit to stop the fraud. That I’m tam the whistleblower gets to keep a percentage of the recovery. According to the Anti-Fraud Association, since 1986, these whistleblower cases have led to $53 billion in fraud – more than two-thirds of all recoveries under the False Claims Act.

Seems like a win-win situation, right?

Enter Florida’s extreme right-wing judge. The judge, Kathryn Kimball Mizelle, was appointed by former President Donald Trump in 2020 and confirmed in the same year, despite being rated “Not Qualified” by the American Bar Association.

In his decision dated September 30, 2024, Judge Mizelle was deciding a lawsuit filed by Clarissa Zafirov, against medical providers that Zafirov alleged were defrauding Medicare. Judge Mizelle ruled in favor of the medical providers – but not because he found there was no fraud. Instead, he decided that I’m tam the provisions of the False Claims Act were unconstitutional! His decision seems to indicate that he is thinking no one it can bring complete independence I’m tam suit on behalf of the government.

Judge Mizelle’s opinion, which contradicts all precedents, says that a person who is given the power to bring a case and make decisions related to it “on behalf of the government” is a violation of the Elections Act of the Constitution, which general who need federal employees. with higher positions of power to be officially appointed by Congress. Of course, this is an independent person who helps – does not represent – the federal government, which always has the opportunity to intervene. I’m tam cases. The law also includes other provisions to help ensure that I’m tam prosecutors represent the interests of the government. (Side note: The same Appointments Clause is also used by conservative judges to weaken preventive services requirements in Braidwood case).

Now, it is not clear where this decision will lead. The other possibility, which we would expect in a sane world, is that the case will be taken to the Circuit Court, dismissed, and the opinion will be a trivial matter mentioned in a footnote at times. only. Another possibility is that this legal theory will gain traction and one day lead to a Supreme Court decision affirming the issue. That may sound harsh, but consider these three facts: Justice Mizelle was Justice Clarence Thomas’ law clerk, Justice Thomas made similar arguments to Mizelle’s dissenting opinion in 2023,’ and a few other Supreme Court Justices have expressed at least some agreement with them. Judge Thomas.

So what would happen if I’m tam How do we know it disappeared? For starters, that’s $53 billion in fraud that may not have been discovered. Qui tam it has been important because the federal government does not have the resources to eliminate every opportunity for fraud. Moreover, even if the government could do everything, in most cases I’m tam whistleblowers have special skills that they are encouraged to adopt. Apart from I’m tamthe federal government often would not know about the fraud at all. Finally, the people or companies who commit fraud (and the lawyers who represent them) will know that they can cancel any whistleblower claim. It’s like when thieves find out that all the police are on vacation. The only alternative is for the government to invest more and more resources in between I’m tam liabilities.

And this brings us to all the other fun games. Small wing judges of government are eliminating private practice that can be replaced by… big government. Proponents of the same right argue that all health care program work should be privatized, but it always weakens the federal government’s ability to control private contractors. Then, when the too-small and too-strapped federal government fails to catch enough fraud, they’ll argue programs like Medicare are riddled with fraud.

Does any of that sound like effective, responsible, or responsible governance?