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Supreme Court Is Poised to Endorse ‘Implied Certification’ in FCA Cases

By R. Scott Oswald
Managing Principal, The Employment Law Group, P.C.

If a government supplier quietly ignores vital rules but still bills taxpayers as if it had complied, can it be held liable under the federal False Claims Act — even if it never directly lies about its compliance?

In today’s arguments in Universal Health Services Inc. v. United States ex rel. Escobar, the U.S. Supreme Court heard two diametrically opposed views. There was little doubt about which side the justices preferred; their resulting debate was limited to sorting out the details.

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What’s It Like to Be a Whistleblower? An Interview with Dr. Ting

THIS POST CONCERNS A CLIENT OF THE EMPLOYMENT LAW GROUP® LAW FIRM. THE RESULTS OF ALL CASES DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH CASE. PAST SUCCESSES DO NOT PREDICT OR GUARANTEE FUTURE RESULTS.

Our Founding Fathers called whistleblowing “the duty of all persons in the service of the United States,” and Abraham Lincoln signed the False Claims Act to foster the practice. But while federal laws reward people who report fraud against the government, whistleblowing isn’t always easy.

On March 8, 2016, the U.S. Department of Justice announced that it would award whistleblower Joseph Ting more than $7 million for his role in a settlement under which 21st Century Oncology, the cancer-care giant, will return $34.7 million to taxpayers to resolve allegations that it overbilled government insurance programs including Medicare.

The outcome was a long-awaited vindication for Dr. Ting, who was represented in the case by The Employment Law Group® law firm. (Read more about our firm’s involvement in the case.) In this candid Q&A, Dr. Ting talks about the experience of being a whistleblower.

Do you remember the moment you decided to take this action against your employer?

I don’t remember an exact time, but it started in March 2014 — shortly after 21st Century took over South Florida Radiation Oncology, the cancer treatment center where I worked. 21st Century was pushing us to implement its so-called Gamma project as fast as possible. This was a huge undertaking and I did not see any medical benefit. 21st Century seemed to be concerned about maximizing its profits, not patient care. I knew I could not be part of that, so I had to do something.

What was the problem with Gamma, exactly?

I am a medical physicist; part of my job deals with calibrating radiation therapy for cancer patients. With Gamma, 21st Century was demanding that an extra measurement be taken for every radiation dose given to every patient — and that each extra measurement be billed to the patient’s insurance. They said it was to confirm proper dosing.

Precision is important, so I did everything I could to understand what Gamma does. But the more I looked into it, the more I had doubts about the whole thing. In my opinion the extra measurement provided no medical value. People were not properly trained to use Gamma, it did not work properly in many cases, and no one looked at the results anyway. Plus it made treatment sessions longer, which is unfair to patients. Later I found out it was being billed improperly, too.

Did you raise these concerns internally?

Yes. I talked to my immediate supervisor. His attitude was that there was nothing he could do about it — it was 21st Century policy. But he shared my concerns with the technology director of 21st Century, and the three of us had a meeting. The technology director said something like, “Oh, we don’t charge for that, it’s just for the patients’ benefit.” But I knew that was not true.

So you decided to file a whistleblower lawsuit on behalf of the taxpayers who were paying for this via Medicare. Did that make your work uncomfortable?

The lawsuit did not impact my work directly because no one knew I had blown the whistle. The process is kept secret from the defendant for a period of time. But I did feel more stressed at work. I avoided doing any Gamma work because I was not comfortable with it, so I felt separate from the rest of the group. I really believed they were doing something wrong, and I felt like I had alienated myself. No one said anything, but that was a significant part of my reason to depart in July 2014. I couldn’t be part of the group anymore. I could not be a silent participant.

Do you have any regrets about blowing the whistle?

No. It was the right thing to do. I suppose that if news had broken before I found a new job, then maybe I would have had trouble finding employment — I don’t know. I could retire if necessary, but I enjoy my work and I’m not willing to retire yet. If I were younger, maybe I would have thought this was more of a risk. But it is important to listen to your conscience.

Tell us a little about your new job.

It’s a relief from the stress I experienced at South Florida Radiation Oncology. Where I work now is a very friendly environment and everybody is part of the culture together. We’re transparent and open and talk about things. I am part of the group again.

Is your employer abusing Medicare? The Employment Law Group can help you to take action.

First Amendment Protection: The Start of a Comeback?

NOTE: A version of this post first appeared on Law360.com. The author, R. Scott Oswald, is managing principal of The Employment Law Group, P.C.

With Lane v. Franks, the U.S. Supreme Court has backed off slightly from the absolutism of a 2006 decision that limited the free-speech rights of public employees — and, in the process, has created a framework that may allow more moderation in future cases.

At one level the Court’s holding yesterday — that the First Amendment can protect government workers from punishment for testifying under oath about job-related matters — was unremarkable, even obvious.

But while Justice Sonia Sotomayor offered her 9-0 opinion mainly as a clarification of Garcetti v. Ceballos, which denies government employees constitutional protection for “speech made pursuant to [their] official duties,” she also added two new considerations that promise to bring more workplace speech under the First Amendment’s shield:

  • Whether an employee is acting on a civic obligation to “society at large”
  • Whether allowing retaliation would discourage important types of whistleblowing

In so doing, Lane hearkened back to the more employee-centric balancing test of 1968’s Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., which had stood mostly undisturbed until the 5-4 ruling in Garcetti.

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Supreme Court Says SOX Can Fit Almost Anyone

NOTE: A version of this post first appeared on Law360.com.  The author, R. Scott Oswald, was counsel of record on an amicus curiae brief filed in this case.

In deciding Lawson v. FMR LLC, the first whistleblower case they have heard under the Sarbanes-Oxley Act (SOX), the justices of the U.S. Supreme Court agreed that the law’s ambiguous anti-retaliation provision offered two alternatives, both somewhat unappealing:

  • Either it doesn’t protect a large class of whistleblowers — in many cases, the people most likely to discover financial wrongdoing;
  • Or it protects virtually anyone hired by a publicly traded company or by its employees, either directly or indirectly, and forbids reprisal for a huge range of fraud reports.

Led by Justice Ruth Bader Ginsburg, a 6-3 majority unflinchingly chose the broader interpretation, instantly giving SOX “a stunning reach,” in the words of a dumbfounded dissent by Justice Sonia Sotomayor.

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Burrage v. U.S. — Can a Heroin Dealer Help to Clarify Whistleblower Law?

By R. Scott Oswald

It’s rare for a criminal appeal — let alone the appeal of a heroin dealer’s sentence for his client’s ill-fated drug binge — to guide our understanding of whistleblower protection laws.

Yet there, on January 27, was the U.S. Supreme Court’s unanimous judgment in Burrage v. United States, a mandatory-minimum drug case that ended up parsing the retaliation provisions of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and more.

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Can Insurance Brokers Be Charged for Affordable Care Act Fraud?

$161 Million Case Reveals Heightened Scrutiny on Broker Fraud Under the Affordable Care Act and the False Claims Act

By Janel Quinn and Keri Teal

Insurance brokers are under a magnifying glass as the Department of Justice (DOJ) ramps up efforts to sniff out fraudulent Affordable Care Act applications and related illegal insurance claims. A recent $161 million ACA fraud case revealed that brokers can potentially be charged for violations of multiple laws.

The DOJ has intensified its focus on ACA-related fraud over the past five years, often including schemes where insurance brokers register ineligible individuals for ACA marketplace plans. Some brokers receive illegal bribes to enroll more people, causing the government to receive fraudulent claims for healthcare.

What is ACA Broker Fraud?

ACA marketplace plans are meant to provide health insurance at reduced or no cost for individuals who meet specific eligibility criteria. The federal government offers subsidies to these enrollees that can go toward paying the insurance premium.

However, some brokers have exploited the system by ignoring the criteria and enrolling people who:

  • Already have Medicaid or other qualifying insurance;
  • Lack legal residency status;
  • Live outside the plan’s geographic service area; or
  • Are part of vulnerable populations often targeted for fraudulent enrollment, such as people experiencing homelessness or unemployment.

A 2015 case involved a broker who enrolled hundreds of people in a homeless shelter, using dubious income estimates. In other cases people weren’t even aware they had been enrolled until they received a letter from the IRS. These enrollments, based on false and inaccurate information, result in unlawful subsidy payments from the government that wouldn’t have been issued had their ineligibility been known.

The misconduct goes beyond fraudulent applications. The DOJ uncovered arrangements where insurance companies or third-party marketing firms pay brokers bribes in exchange for steering individuals toward certain plans. These payments — known as “kickbacks” — might be disguised as marketing fees or bonuses, but they regardless violate the Anti-Kickback Statute (AKS) and can lead to violations of the False Claims Act (FCA).

What is the FCA, and Why Does it Apply Here?

The FCA imposes liability on anyone who knowingly submits, or causes the submission of, false or fraudulent claims to the government. Enrolling ineligible individuals with falsified or misleading information is an example of this. A person who is ineligible for ACA coverage cannot legally submit a claim for subsidy to the Centers for Medicare & Medicaid Services.

Even if a person is qualified for coverage, their claims may still be illegal because of a broker or insurer’s misconduct. If the broker or insurer involved in a person’s ACA enrollment is engaged in kickback arrangements, every claim tied to those bribes may be considered “tainted.” Courts[1] have held that violations of the AKS render all connected claims submitted “in violation of law,” and thus actionable under the FCA.

Why Should This Matter to You?

Improper subsidy payments divert taxpayer dollars from those who genuinely qualify for ACA coverage. They also distort insurance markets by inflating plan enrollment numbers, potentially raising costs for everyone under the same plan, and misallocating federal funds.

More recently, investigators have paid closer attention to insurance brokers, particularly those involved in questionable enrollment practices. While brokers may not submit claims themselves, courts have held that those who cause false claims to be submitted — by enrolling ineligible individuals, for example — can still be held liable under the FCA.

A Real-World Example: DOJ’s $161 Million ACA Fraud Case

In February of 2025 the DOJ announced charges against the president of an insurance brokerage firm and the CEO of a marketing company. The defendants allegedly submitted fraudulent ACA applications on behalf of individuals who did not meet the minimum income threshold for subsidies. Specifically, the defendants targeted vulnerable people experiencing homelessness, unemployment, and mental health or substance use disorders.

According to the indictment, the defendants also paid kickbacks to induce enrollments into specific ACA plans, while receiving undisclosed compensation from insurers in return. This combination of false applications and illegal inducements created a pipeline of tainted subsidy claims.

The DOJ estimated that the scheme cost the federal government at least $161,900,000 in improperly obtained subsidies, making it one of the more consequential ACA enrollment fraud cases charged to date.

ACA fraud is not just a compliance concern — it’s a False Claims Act risk. Brokers and insurers should carefully review their internal controls, especially those tied to eligibility screening, enrollment practices, and compensation arrangements.

If you discover that your employer is engaging in a similar scheme, or have a problem at work more generally, call The Employment Law Group.

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[1] U.S. ex rel. Hueseman v. Prof. Compounding Centers of Am., Inc., 664 F. Supp. 3d 722, 732–33 (W.D. Tex. 2023).

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Janel Quinn is a principal of The Employment Law Group, P.C.; Keri Teal is an associate at the firm.

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I write to acknowledge TELG for their professionalism while handling my litigation, especially to attorneys Adam and Scott. I came to consult with Scott at the very beginning, which later turned out to be very rewarding. A lawsuit is a long, uncomfortable and stressful process. I was lucky to have Adam and Scott along with me, listening details of my case, absorbing my opinions, keeping me informed timely, preparing documents carefully, and making convincing recommendations and decisions. In every step of the way, they showed me a superior level of expertise in a complex area of the law. Much more, I was very impressed by their skills in the court. Most importantly, they obtained me a good result. I appreciate very much that Adam, Scott, and their associates in TELG have done, including their great efforts and valuable experience.

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Scott Oswald and his colleagues at TELG are unsurpassed for representing their clients’ interests, from start to finish. They also have a good moral compass that guides their actions. They are well-connected in Washington. If you have a good cause as well as a good case, Scott Oswald and his TELG team are a great choice.

Scott Oswald, the Managing Partner, is a consummate professional and an outstanding litigation attorney.

The attorneys at The Employment Law Group (TELG) are a group of caring, dedicated professionals who specialize in litigation. Scott Oswald, the managing partner, is a consummate professional and outstanding litigating attorney. Scott Oswald will tell you up front whether or not you have a claim. If Scott believes you have a claim, he and his staff will work tirelessly to ensure justice prevails and that you receive the best possible outcome under the law. Nick Woodfield is an outstanding litigator and a seasoned professional. He is well respected among his peers and a tough negotiator. Nick’s thoroughness and toughness will break the backs of even the most egregious wrong-doers. My sincere thanks goes out to the entire team at TELG…for believing in me and for fighting so hard for my vindication. If you’ve been wronged and you want to see Justice prevail, go with the staff at TELG – you won’t be disappointed.

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