DOJ’s Failure to Provide Adequate Pre-Filing Notice Leads to Invalidation of Tolling Agreement

Last week, a federal judge in the Eastern District of North Carolina invalidated a tolling agreement between DOJ and the defendants, finding that the Government breached the agreement by failing to provide the defendant with the agreed-upon thirty days’ notice before filing suit.  See United States v. Bertie Ambulance Serv., Inc., No. 2:14-CV000053-F (Oct. 8, 2015).  Bertie Ambulance Service provides patients in eastern North Carolina with emergency transport service as well as transport to non-emergency scheduled dialysis treatments.  The Government began investigating Bertie in 2004 for the submission of false claims for Medicare and Medicaid payments, eventually alleging in its complaint that Bertie regularly submitted reimbursement claims for services that “were not medically necessary, were not supported by a valid Physician Certification Statement, or otherwise did not qualify for reimbursement.”  Upon notifying Bertie of the investigation on August 31, 2010, the Government requested that Bertie consent to tolling the six-year statute of limitations, and the parties ultimately entered into four tolling agreements that covered the period from September 1, 2010, to August 29, 2014.  Bertie agreed to waive its statute of limitations defense in exchange for the Government providing “thirty (30) days notice to the prospective defendants before the United States files any action alleging the Government claims.”