Kaiser Whistleblowers Win FCA Challenge in 9th Circuit Reversal

A three-judge panel must reconsider whether two whistleblowers can proceed with their False Claims Act suit alleging that Kaiser Foundation Health Plan Inc. defrauded Medicare, the US Court of Appeals for the Ninth Circuit said Tuesday.

A lower court dismissed the suit filed by Marcia Stein and Rodolfo Bone, alleging upcoding diagnoses for medical conditions. A three-judge panel in January affirmed, stating that the suit was barred by the FCA’s first-to-file rule, which precludes later filed cases from proceeding if other related cases are pending.

That panel had affirmed the dismissal with the view that the bar is jurisdictional—but ...