May 2025 Legal Intelligencer article by Lamb McErlane Health Law Attorneys Vasilios J. Kalogredis, Esq. and Sonal Parekh, Esq.

In U.S. ex rel. Polansky v. Geisinger Holy Spirit[1], the U.S. District Court for the Middle District of Pennsylvania reinforced the scope of the False Claims Act’s (“FCA”) “government action bar,” dismissing a second qui tam lawsuit brought by a relator-physician on the grounds that it was duplicative of an FCA suit previously filed and ultimately dismissed.

 Background: A Longstanding Dispute

Dr. Jesse Polansky, a physician formerly employed by the Centers for Medicare & Medicaid Services (“CMS”), initially filed a sealed qui tam complaint in July 2012 under the FCA. The complaint alleged that various hospital networks, including those affiliated with Geisinger Health, had fraudulently billed Medicare by improperly classifying outpatient services as inpatient admissions. That case, U.S. ex rel. Polansky v. Executive Health Resources, Inc.[2], involved extensive litigation, including the filing of several amended complaints, culminating in a government motion to dismiss under 31 U.S.C. § 3730(c)(2)(A). While the government initially declined to intervene in 2014, it later attempted to narrow the relator’s claims but eventually moved to dismiss the matter entirely because it determined that the cost of proceeding with litigation would outweigh the potential benefit. The government’s motion to dismiss prevailed on all levels, including the U.S. Supreme Court, which affirmed the government’s broad dismissal authority in U.S. ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023).

 A Second Bite at the Apple

While the first lawsuit was pending appeal, Dr. Polansky filed a second qui tam action in April 2020, again under seal, targeting Geisinger Holy Spirit. The allegations mirrored those in the earlier case, contending that Geisinger engaged in the same inpatient/outpatient fraudulent scheme. After the government completed its investigation and declined to intervene, the case was unsealed in late 2023.

Geisinger moved to dismiss the new case under the FCA’s government action bar, codified at 31 U.S.C. § 3730(b)(5)[3], arguing that the suit was based on the same underlying fraudulent conduct as the earlier action, and thus jurisdictionally barred.

 The Court’s Decision

Magistrate Judge Joseph F. Saporito, Jr. granted Geisinger’s motion to dismiss, holding that the second action was precluded under the government action bar. The court emphasized that “[t]here is, frankly, very little daylight between the two cases,” finding that the relator had “simply recycled many of the allegations” from the first case.

Polansky attempted to distinguish the new action by arguing that it involved different defendants, but the court was unpersuaded since the core of the alleged fraud (i.e., manipulation of inpatient admission designations) was identical in both cases. According to the court, the government’s prior involvement in the first case, even though it ultimately sought dismissal, was sufficient to trigger the jurisdictional bar.

Importantly, the court rejected Polansky’s statutory interpretation arguments, including the contention that the government action bar should not apply because the government was no longer an active party to the earlier litigation. The court characterized this as a “straightforward” application of the bar, declining to read into the statute a temporal limitation or a requirement that the government be an active litigant at the time the second suit was filed.

Significance

This ruling underscores the strength and reach of the government action bar in FCA litigation. The decision makes clear that relators who attempt to repackage previously litigated claims, even against different defendants, may find their cases dismissed for lack of jurisdiction. It also affirms the judiciary’s deference to the government’s prerogative in managing FCA litigation and protecting against duplicative lawsuits that strain public resources.

For both whistleblowers and counsel alike, Polansky serves as a cautionary tale: the FCA’s procedural restrictions are not mere formalities. Litigants must carefully evaluate whether new claims truly present novel theories of fraud or whether they risk dismissal under the statute’s jurisdictional constraints.

If you have any questions or if we may be of further assistance regarding compliance or other health law matters, please feel free to contact Bill Kalogredis, Esq. or Sonal Parekh, Esq.

Read the article in the Legal Intelligencer / Law.com here.

Vasilios J. (Bill) Kalogredis, Esq. has been advising physicians, dentists, and other healthcare professionals and their businesses as to contractual, regulatory and transactional matters for 50 years. He is Chairman of Lamb McErlane PC’s Health Law Department. Bill can be reached by email at bkalogredis@lambmcerlane.com or by phone at 610-701-4402.

 Sonal Parekh, Esq., is an associate at Lamb McErlane PC who focuses on healthcare transactional matters and a broad range of healthcare regulatory-related issues on behalf of healthcare systems, physicians, dentists, and other healthcare providers, and is a pharmacist by education and training. Sonal can be reached by email at sparekh@lambmcerlane.com or by phone at 610-701-4416.

*This article is for educational purposes only and is not intended to be legal advice. Should you require legal advice on this topic, any health care matter, or have any questions or concerns, please contact Vasilios J. (Bill) Kalogredis, Esq. or Sonal Parekh, Esq.

[1] U.S. ex rel. Polansky v. Geisinger Holy Spirit, No. 1:20-cv-00599 (M.D. Pa. Apr. 30, 2025).

[2] U.S. ex rel. Polansky v. Executive Health Resources, Inc., 599 U.S. 419 (2023).

[3] The FCA’s government action bar provides that when a person brings a qui tam action, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action. See 31 U.S.C. § 3730(b)(5).