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Brian P. Dunphy

Member / Co-Chair, Health Care Enforcement Defense Practice

[email protected]

+1.617.348.1810

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Brian is a health care litigator and Co-Chair of the Health Care Enforcement Defense Group. Brian is a trusted advisor for clients, and he defends clients facing government investigations and whistleblower complaints regarding alleged violations of the federal False Claims Act (FCA) and similar state laws. Brian also handles commercial litigation involving business disputes for health care, life sciences, and biotechnology companies. He defends national product liability cases for pharmaceutical and biotech companies.

Brian advises and counsels health care providers, health plans, Medicare Advantage plans, biotechnology and life sciences companies, and clinical laboratories. He represents them in government investigations, in litigation, at trial, and in arbitration.

In particular, Brian defends companies against government investigations of alleged violations of the FCA and the Anti-Kickback Statute (AKS). He conducts internal investigations and litigates qui tam FCA cases in federal courts around the country. Brian is well-versed in health care regulatory requirements, including in Medicare Advantage and risk adjustment. Brian also represents health plans, biotechnology, life sciences, health care, and technology companies in complex business disputes.

Brian is committed to pro bono work and is a member of the firm’s Pro Bono Committee. He obtained political asylum for a client who was tortured in the Democratic Republic of the Congo, and he secured a residential educational placement for a disabled student. Brian has spent more than a decade advising a non-profit organization dedicated to advancing the study, treatment, and prevention of the effects of concussions and other brain trauma in athletes and other at-risk groups.

Brian is also deeply involved in the Boston community as a member of the Board of Advisors for Life Science Cares, and the Boards of Directors of the Concussion Legacy Foundation and the Volunteers Lawyers Project. He was also a Member of the Boston College Law School Alumni Board.

Before attending law school, Brian was a project manager at Accenture, a management and technology consulting firm, where he provided project management and consulting services. Brian developed project plans and budgets, managed teams to meet project milestones, and worked with client executives to ensure projects met business objectives. He continues to utilize his project management skills working with his clients to manage matters effectively and to deliver timely results.

Brian is a health care litigator and Co-Chair of the Health Care Enforcement Defense Group. Brian is a trusted advisor for clients, and he defends clients facing government investigations and whistleblower complaints regarding alleged violations of the federal False Claims Act (FCA) and similar state laws. Brian also handles commercial litigation involving business disputes for health care, life sciences, and biotechnology companies. He defends national product liability cases for pharmaceutical and biotech companies.

Experience

  • Defended numerous clients, including laboratories, health plans, and Medicare Advantage plans, in government FCA investigations and FCA litigation in jurisdictions around the country
  • Obtained dismissal of a whistleblower’s state and federal FCA claims against a vendor to Medicare Advantage plans. Argued the appeal in the Second Circuit Court of Appeals, which affirmed the district court’s decision
  • Obtained summary judgment in nine related cases against a publicly traded biotechnology company and a pharmaceutical company in multi-jurisdictional product liability disputes involving an FDA-approved pharmaceutical drug
  • Represented construction companies in a state Attorney General’s false claims act investigation related to a construction project
  • Obtained dismissal of a whistleblower’s state and federal FCA claims against a Pharmacy Benefit Manager in federal court, and the Third Circuit Court of Appeals upheld the district court’s decision in our client’s favor
  • Represented a health insurance company in an FCA lawsuit in federal court where relator alleged an industry wide drug-pricing scheme. The court dismissed the case
  • Defended companies against FCA retaliation claims before litigation, in litigation, and at trial
  • Obtained a defense verdict as trial counsel after a week-long federal court jury trial. Plaintiff, a former distributor of our client’s next-generation DNA sequencing machines, filed an 18-count, $100 million complaint against our client
  • Achieved victory in an arbitration for an international life sciences company initiated by one of the company’s suppliers. After an evidentiary hearing, a panel of arbitrators rejected the supplier’s claims and entered judgment for our client on its counterclaim, including recovery of our client’s attorneys’ fees and costs
  • Represented a life sciences company before the International Court of Arbitration of the International Chamber of Commerce in a breach of contract dispute involving the manufacture of diagnostic assays
  • Successfully defended a physician before an Administrative Law Judge against an action by the Massachusetts Board of Registration in Medicine to revoke or suspend the physician’s license
  • Conducted an internal investigation of a health care provider and prepared a self-disclosure to the U.S. Department of Health and Human Services, Office of Inspector General (OIG)
  • Successfully opposed the OIG’s proposed exclusions of a physician from federal health care programs
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viewpoints

The Supreme Court denied a petition for certiorari last Monday in U.S. ex rel. Prather v. Brookdale Senior Living Communities, Inc., No. 17-5826 (6th Cir. June 11, 2018), again declining to revisit or clarify the False Claims Act's “materiality” standard set forth in its 2016 decision in Universal Health Services v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016). 

In Prather, the relator alleged that defendant Brookdale Senior Living Communities, Inc. (Brookdale), a home health provider, submitted bills for medical services that were “untimely” signed and certified by physicians in violation of Medicare regulations.  When submitting Medicare claims, Brookdale purportedly did not obtain the required physician certifications attesting that the medical services provided by Brookdale were necessary until months after establishing a patient’s plan of care.  Because Medicare regulations under 42 C.F.R. § 424.22(a)(2) require physician certifications “at the time the plan of care is established or as soon thereafter as possible,” the relator alleged that Brookdale’s untimely certifications rendered the claims false under the implied false certification theory.  The district court dismissed the complaint on materiality grounds, holding that the noncompliance was insubstantial and that the relator failed to allege that the government had ever denied a claim based on a violation of the timing requirement under the Medicare regulations.
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Health Care Enforcement Year in Review and 2019 Outlook: Civil Litigation Developments and Settlements

January 11, 2019 | Blog | By Brian Dunphy, Laurence Freedman, Karen Lovitch

As in years past, the False Claims Act (FCA) remained a powerful health care enforcement tool in 2018, and FCA investigations and litigation persisted, fueled mainly by hundreds of lawsuits filed annually by relators, including 645 new qui tam actions initiated in FY 2018.
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Last year, as we previously discussed, there were two significant Department of Justice (DOJ) policy developments that are applicable to False Claims Act (FCA) litigation: (1) the “Granston Memo” (issued by DOJ Civil Fraud Director Michael Granston), which set forth direction for DOJ’s exercise of its authority to dismiss declined qui tam FCA cases; and (2) the “Brand Memo” (issued by Associate Attorney General Rachel Brand), which instructed DOJ’s FCA litigators not to use any sub-regulatory guidance to create legal obligations. 
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The Tenth Circuit Court of Appeals has issued a significant decision, finding that a physician’s medical judgment about the medical necessity of heart procedures can be “false or fraudulent” under the federal False Claims Act (FCA). 
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Like prior years, 2017 saw large government recoveries and a high volume of False Claims Act (“FCA”) cases, which remain the government’s primary health care enforcement tool.
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The President has released a “budget blueprint” for fiscal year 2018. Although there are many aspects of the budget blueprint to digest, several budget items signal that government health care fraud enforcement remains a priority under the new administration.
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In a closely watched False Claims Act (“FCA”) case, the Fourth Circuit Court of Appeals decided that the Department of Justice (“DOJ”) has an unreviewable right to object to a proposed settlement agreement between a relator and a defendant when the Government has declined to intervene in the case.
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In this final installment of our Health Care Enforcement Review and 2017 Outlook series, we analyze health care enforcement trends gathered from 2016 civil settlements and criminal resolutions of health care fraud and abuse cases. Behind the headlines covering enormous recoveries in 2016, several themes are apparent.
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As is well known, drug prices have been widely discussed nationally. They have been the subject of Congressional hearings and, in the case of Mylan, a high profile settlement.
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News & Press

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BOSTON – Twenty-five Mintz attorneys have been named to Boston Magazine’s Top Lawyers list.
BOSTON – Mintz has appointed Brian Dunphy as Co-Chair of the firm’s Health Care Enforcement Defense Group with immediate effect. Brian joins Karen Lovitch, who also serves as Chair of the Health Law Practice, in joint leadership.
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In its second annual edition, 28 Mintz attorneys were named to Boston Magazine’s Top Lawyers list.
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Mintz Members Brian P. Dunphy, Joanne S. Hawana, and Jennifer B. Rubin co-authored a Bloomberg Law insights column examining potential legal liabilities for employers implementing Covid-19 workplace vaccination programs, explaining that immunity under the federal Public Readiness and Emergency Preparedness Act (PREP Act) is not absolute.
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Mintz Members Kevin Ainsworth and Brian Dunphy co-authored an article published by New York Law Journal that analyzes the conditions for, and limitations of, the Public Readiness and Emergency Preparedness Act (PREP Act) immunity during the COVID-19 global health crisis.
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Mintz Members Brian Dunphy and Laurence Freedman, and Member and Co-Chair of the firm’s Health Law Practice Karen Lovitch co-authored this Law360 expert analysis article examining trends in U.S. Department of Justice health care enforcement in 2019, noting that the False Claims Act remains the government’s most powerful civil health care enforcement tool.
Brian Dunphy a Member in the Boston Mintz office authored the second article in a four-part series discussing some of 2017’s most important False Claims Act (FCA)-related court decisions.
Mintz has elevated five attorneys to Members of the firm. “These attorneys consistently demonstrate excellence in the delivery of legal services to the firm’s clients,” said Bob Bodian, Managing Member.
This is the fourth and final installment of a series from Mintz’s Health Law team recapping key government policies, regulations and enforcement actions from 2016 and discussing their potential impacts on 2017.
Fifty-three Mintz attorneys have been named Massachusetts Super Lawyers for 2016 and thirty-one have been named Massachusetts Rising Stars. The findings will be published in the November 2016 issue of Boston Magazine and in a stand-alone magazine, New England Super Lawyers. 
Mintz Members Brian Dunphy and Larry Freedman authored this BNA’s Medicare Report article discussing the long-awaited final Medicare Overpayment Rule from the Centers for Medicare & Medicaid Services.
Brian Dunphy, a Health Law and Litigation attorney, is quoted in this Becker’s Hospital Review piece on the Center for Medicare and Medicaid Services’ final rule.
Mintz Member Brian Dunphy is quoted in this Inside CMS article on the Center for Medicare and Medicaid Service's (CMS) final rules requiring healthcare providers and suppliers to report and return overpayments by a certain date.
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Brian is a health care litigator and Co-Chair of the Health Care Enforcement Defense Group. Brian is a trusted advisor for clients, and he defends clients facing government investigations and whistleblower complaints regarding alleged violations of the federal False Claims Act (FCA) and similar state laws. Brian also handles commercial litigation involving business disputes for health care, life sciences, and biotechnology companies. He defends national product liability cases for pharmaceutical and biotech companies.

Recognition & Awards

  • Boston Magazine Top Lawyers – Health Care Law (2022-2023)

  • Volunteer Lawyers Project: 2019 Denis Maguire Award 

  • Included on the Massachusetts Super Lawyers Rising Star Health Care list 

  • Greater Boston Chamber of Commerce, Boston Future Leaders Program 

  • Boston Bar Association Public Interest Leadership Program 

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Brian is a health care litigator and Co-Chair of the Health Care Enforcement Defense Group. Brian is a trusted advisor for clients, and he defends clients facing government investigations and whistleblower complaints regarding alleged violations of the federal False Claims Act (FCA) and similar state laws. Brian also handles commercial litigation involving business disputes for health care, life sciences, and biotechnology companies. He defends national product liability cases for pharmaceutical and biotech companies.

Involvement

  • Board of Advisors, Life Science Cares
  • Board of Directors, Volunteer Lawyers Project of the Boston Bar Association
  • Board of Directors, Concussion Legacy Foundation
  • Alumni Board Member, Boston College Law School
  • Member, Boston Bar Association
  • Member, Massachusetts Bar Association
  • Member, American Bar Association
  • Member, American Health Lawyers Association
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Brian P. Dunphy

Member / Co-Chair, Health Care Enforcement Defense Practice

Boston