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VOLUME 53 | FALL ISSUE ARTICLES

Life, Death, and Medicare Fraud: The Corruption of Hospice and What the Private Public Partnership Under the Federal False Claims Act is Doing About It

This Article will demonstrate, the public-private partnership endorsed by Congress in the federal False Claims Act has been, and will continue to be, the driving force in prosecuting allegations of fraud under the Medicare Hospice Benefit. The scope of this Article is to examine the general trend of Medicare Hospice fraud enforcement actions, periodically referencing the particulars of the Kolodesh case as a paradigm.

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James F. Barger


"Private Justice" and FCPA Enforcement: Should the SEC Whistleblower Program Include a Qui Tam Provision?

The most important—and under-recognized—fact about the enforcement of transborder anti-corruption legal regimes is this: governments cannot realistically expect to be able to do it effectively without enlisting the help of whistleblowers and the private bar. Various international conventions that require criminalization of transborder corruption recognize that civil remedies may be effective, but they do not require state parties to implement such remedies. This article posits that “private justice,” defined expansively as private persons initiating, or assisting in the launching, of lawsuits to detect and deter public harms, must be employed in conjunction with governmental criminal enforcement if we are to achieve any real success in containing the contagion of transborder corruption. Not all states’ legal systems are hospitable to private justice, and the United States is one of the few countries that use it so comprehensively.This may arise from a cultural antipathy toward whistleblowers, a preference for judicial investigations of wrongdoing, or a disinclination to adopt the structural incentives—such as contingency fee arrangements—that make some such mechanisms work. But those states whose legal systems are congenial to the notion ought seriously to consider harnessing the power of private justice in the war against corruption and its many collateral ills. 

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Julie Rose O'Sullivan


Symposium Comment: Lessons From the Private Enforcement of Healthcare Fraud

This article imparts lessons from the private enforcement of health care fraud under the False Claims Act (“FCA”). The FCA, which established a private right of action to sue individuals and entities who have defrauded the U.S. government, cannot be used to enforce the FCPA because bribing foreign officials, while illegal, does not by itself defraud the U.S. government. The FCA, however, provides a workable example to help evaluate how a private right of action could aid the enforcement of the FCPA’s anti-bribery provisions, and whether it would be prudent create one. This Article will apply lessons from the private enforcement of the FCA in the context of health care fraud litigation and investigations to the question of whether Congress should create a private right of action to enforce the FCPA’s anti-bribery provisions. 

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Joshua A. Levy

Visit Issue 53 for Student Notes.

ANNUAL SURVEY OF WHITE COLLAR CRIME

A comprehensive topic-by-topic summary of white collar crime intended to provide practitioners with a point of reference when they find themselves in an unfamiliar area of law. Visit the ASWCC.