Brian K. French

My focus

Government Enforcement

I represent a range of healthcare organizations, life sciences companies, executives, and employees in government investigations and related criminal proceedings and civil litigation brought by the U.S. Department of Justice, U.S. Attorney’s Offices, state attorneys general, and qui tam relators. In the healthcare field, I’ve represented hospitals, home health and hospice organizations, skilled nursing facilities, dialysis providers, anesthesia providers, pain clinics, clinical laboratories, durable medical equipment companies, and physician groups in federal grand jury investigations, False Claims Act investigations and litigation, enforcement actions by the U.S. Department of Health and Human Services, Office of Inspector General, audits by Medicare and Medicaid contractors, and voluntary self-disclosures to government regulators. I’ve also represented many pharmaceutical, biotechnology, and medical device companies, as well as individuals, in government enforcement matters and litigation involving alleged off-label promotion and Anti-Kickback Statute violations, relationships with charitable patient assistance programs, consumer protection matters, and pricing and reimbursement issues.

Compliance Advising

I provide proactive compliance advice to clients in the healthcare and life sciences industries. I partner with clients in assessing their key risk areas and help them develop compliance strategies and programs that reflect the specific needs and goals of their organizations. I work with clients to ensure that their proposed business arrangements comply with federal and state regulations and collaborate with them in developing alternative solutions when necessary. In the life sciences field, I advise clients on a wide range of issues, such as appropriate product and service promotion, co-payment assistance programs, proper financial arrangements and collaborations between and among industry and providers, and the Physician Payment Sunshine Act (Open Payments) and related transparency issues. Finally, I help conduct regulatory due diligence reviews in merger and acquisition transactions.

Representative experience

Healthcare Investigations and Litigation

• Representation of one of the nation’s largest hospice providers in an investigation by the U.S. Department of Justice and various U.S. Attorney’s Offices involving patient eligibility and related Medicare billing issues.
• Defense of anesthesia services providers in two separate False Claims Act lawsuits brought by former employees alleging fraudulent billing practices.
• Representation of employees of a rehabilitation therapy services company in a federal grand jury investigation over Medicare billing issues and obstruction of justice allegations.
• Representation of a multi-state orthotics and prosthetics provider in a False Claims Act investigation by the U.S. Attorney’s Office and several state attorney general’s offices over Medicare and Medicaid billing issues.
• Representation of a California hospital in a federal Anti-Kickback Statute and False Claims Act investigation involving its arrangements with local ambulance companies.
• Representation of a health insurance company in a mental health parity investigation by the Massachusetts Attorney General’s Office.
• Representation of multiple dialysis providers in a joint investigation by the U.S. Attorney’s Office for the Eastern District of New York and the New York Attorney General’s Office over alleged Medicaid billing violations.
• Representation of a home health organization in a MassHealth audit of allegedly improper Medicaid billing activities.
• Representation of a Florida physician practice in civil enforcement proceedings launched by HHS-OIG involving the practice’s clinical laboratory arrangements.
• Representation of the owner of multiple skilled nursing facilities in a federal investigation involving Medicare claims for rehabilitation therapy services.
• Representation of a major New York teaching hospital in an internal investigation of radiology ordering and billing practices.

Life Sciences Investigations and Litigation

• Representation of GlaxoSmithKline in two separate government investigations involving alleged off-label promotion, Anti-Kickback Statute violations, and improper “Best Price” reporting under the Medicaid Drug Rebate Program. These matters, along with a third investigation, were resolved as part of a global settlement.
• Representation of a major pharmaceutical manufacturer in an industry-wide investigation by the U.S. Attorney’s Office for the District of Massachusetts over donations to charitable patient assistance foundations.
• Key member of Nixon Peabody team serving as the law firm Independent Review Organization for a large biotechnology company operating under an OIG-imposed Corporate Integrity Agreement concerning the company’s arrangements with specialty pharmacies.
• Representation of an orthopedic medical device manufacturer in a federal investigation over alleged healthcare fraud.
• Representation of a charitable patient assistance foundation in an investigation by the U.S. Department of Justice over the foundation’s dealings with a pharmaceutical manufacturer donor.
• Representation of a pharmaceutical sales executive targeted in a federal investigation involving allegations of off-label promotion and anti-kickback violations.
• Representation of various pharmaceutical manufacturers in average wholesale price (“AWP”) multidistrict litigation and AWP lawsuits brought by various state attorneys general.
• Representation of managed care account executives of a pharmaceutical manufacturer in a federal grand jury investigation involving allegations that company personnel deceived Medicare into covering the costs of certain medications through submitting false prior authorization information.
• Representation of a former regional account manager of a large pharmaceutical company in connection with a federal investigation of alleged anti-kickback violations.

Other Investigations

• Representation of a construction company and its chief executive in a federal investigation of alleged government contract set aside fraud and obstruction of justice.
• Representation of a quasi-governmental organization in a federal grand jury investigation of possible honest services fraud.

Insights

• “Negotiating False Claims Act Settlements,” in Health Law Handbook, Thomson Reuters, 2021 (co-author)