Robert Salcido has represented several Fortune 500 companies, major nonprofit health care systems, and executives in responding to governmental civil and criminal investigations, conducting internal investigations, defending lawsuits filed under the False Claims Act (FCA) and defending wrongful retaliation lawsuits brought by alleged whistleblowers. Mr. Salcido also provides counseling regarding the application of health care fraud and abuse laws.
Practice & Background
Prior to Akin Gump, Mr. Salcido was a trial attorney with the U.S. Department of Justice in the Civil Fraud Unit from 1988 to 1993. He prosecuted cases under the FCA, handled cases under the FCA’s voluntary disclosure provisions and specialized in whistleblower actions brought under the qui tam provisions of the FCA.
Mr. Salcido is one of the few lawyers who has successfully litigated several FCA cases to conclusion against the government at trial and at summary judgment, including—
- United States of America ex rel. Jamison v. McKesson Corporation, et al.: Mr. Salcido was lead counsel for Golden Living in FCA action where the federal government had sued Golden Living’s predecessor company Beverly Enterprises (“Beverly”) for $895 million alleging that Beverly had engaged in an unlawful kickback scheme with McKesson Corp. in violation of the Anti-Kickback Act and the FCA. After 14 days of trial, the court ruled that Beverly and McKesson did not violate the FCA or the Anti-Kickback Act because their business negotiations were fair, reasonable, and conducted in good faith. This case was featured in Law360’s article “Health Care MVP: Akin Gump’s Robert Salcido,” where Mr. Salcido was selected as one of only four health care MVP’s for 2012 and in the article “Health Practice Group of the Year: Akin Gump”. Reported Decision: United States of America ex rel. Jamison v. McKesson Corp., 900 F. Supp. 2d 683 (N.D. Miss. 2012)
- United States v. Prabhu: Mr. Salcido was lead counsel for defendant physician and multi-specialty group practice that the government accused of FCA violations. The District Court dismissed all the government’s claims on summary judgment. This case represented aanother rare instance in which defendants prevailed against the government on summary judgment in an FCA action. Ultimately, because the United States’ action lacked “substantial justification,” the United States was ordered to pay defendants more than $500,000 in legal fees. In making the ruling, the Court ruled that Medicare fraud law is an area of expertise and ruled that it was undisputed that Mr. Salcido possessed such expertise. Reported decisions: 442 F. Supp. 2d 1008 (D. Nev. 2006); 2007 U.S. Dist. LEXIS 81306 (D. Nev. Oct. 23, 2007); see also Order
- United States of America ex rel. Jamison v. McKesson Corporation, et al.: Mr. Salcido was lead counsel for Golden Living in an action where relator and government sued multiple defendants alleging that they violated the FCA because they knowingly created and operated a supply company in violation of Medicare Supplier Standards. The district court granted defendants’ FCA summary judgment motion regarding the Supplier Standards allegations, finding that the government’s prior administrative proceedings demonstrated that the defendant supply company was entitled to payment. The district court also dismissed the relator from the action under FCA public disclosure bar and the Fifth Circuit affirmed the district court’s decision. Reported decisions: 649 F.3d 322 (5th Cir. 2011); 784 F. Supp. 2d 664 (N.D. Miss. 2011); 2010 U.S. Dist. LEXIS 28562 (N.D. Miss. Mar. 25, 2010).
Mr. Salcido has also, as lead counsel, successfully defended a number of qui tam actions by obtaining the dismissal of the lawsuit including:
- In re Natural Gas Royalties Qui Tam Litigation: Mr. Salcido represented ExxonMobil in a qui tam action alleging that more than 300 defendants undervalued the heating content and volume of gas. The district court dismissed the relator’s action under the FCA public disclosure jurisdictional bar. The 10th Circuit affirmed the district court’s ruling. Mr. Salcido also successfully moved the Court to award defendants’ their attorney fees based upon the relator filing a frivolous action. Reported decisions: 562 F.3d 1032 (10th Cir. 2009); 467 F. Supp. 2d 1117 (D. Wyo. 2006); see also Order
- United States ex rel. Assoc. Against Outlier Fraud v. Huron Consulting Grp., Inc.: Mr. Salcido represented Huron Consulting Group in a qui tam action alleging that Huron caused St. Vincent’s Catholic Medical Centers to inflate its charges to obtain an unlawfully excessive amount of Medicare outlier payments. At summary judgment, the court dismissed plaintiff’s claim ruling that there could be no FCA violation as a matter of law because the alleged practice- raising charges on the chargemaster, which resulted in the receipt of additional outlier payments – “was not forbidden by either regulation or standard practice.” Mr. Salcido also successfully represented Huron Consulting Group before the Second Circuit, which affirmed the district court ruling. Reported decision: 567 Fed. Appx. 44 (2d Cir. 2014); 929 F. Supp 2d 245 (S.D.N.Y. 2013)
- United States ex rel. Huey vs. Summit Healthcare Ass’n, Inc., et al.: Mr. Salcido represented Brim Healthcare (“Brim”), a hospital management company where qui tam plaintiff alleged a hospital Brim managed received a substantial Medicare overpayment. The court granted Brim’s motion to dismiss, ruling that it could not have “caused” the hospital to submit false claims or “conspired” with it because Brim’s mere knowledge that another party may be committing fraud, without more, does not result in an FCA violation, let alone a conspiracy to violate the FCA. Reported decision: 2011 U.S. Dist. LEXIS 26740 at *21-*22 (D. Ariz. Mar. 2, 2011)
- United States ex rel. Westlund v. LabCorp: Mr. Salcido represented LabCorp in obtaining dismissal of qui tam case under Fed. R. Civ. P. 12(b)(6) and 9(b) where relator alleged LabCorp violated the FCA and Anti-Kickback Act. Reported decision: 2012 U.S. Dist. LEXIS 57050 (M.D. Fla. Apr. 24, 2012).
- United States ex rel. Moore & Co., P.A. v. Majestic Blue Fisheries, LLC: Mr. Salcido represented defendants in an action where plaintiff contended that defendants misrepresented ownership and control of entities to obtain government licenses. The district court dismissed plaintiff’s action under the FCA public disclosure bar. Reported decision: 2014 U.S. Dist. LEXIS 133036 (D. Del. Sept. 23, 2014)
- United States ex rel. Portilla v. Riverview Post Acute Care Ctr.: Mr. Salcido represented a Skilled Nursing Facility where the relator alleged that the SNF violated the FCA because, despite doctor’s orders, the SNF failed to provide bed alarms and abdominal binders to residents. The district court dismissed the action, finding that there was no FCA violation because the failure to provide a bed alarm or abdominal binder (or any routine supply) would not change the government’s reimbursement rate, which was paid on a prospective basis, and because the government did not incur any potential financial detriment, there was no FCA liability. Reported decision: 2014 U.S. Dist. LEXIS 44002 (D.N.J. Mar. 31, 2014)
Awards & Accolades
Mr. Salcido is routinely listed as a leading practitioner in legal publications that rank attorneys based upon client surveys, including:
- recognized by Washingtonian magazine as a top lawyer in the category of health care (2013)
- recognized by Washington, D.C. Super Lawyers in the health care practice area (2008-2011; 2013-2014)
- Law360 MVP (2012) for Health Care (selected as one of the four Health Care MVP’s for 2012 based upon successful trial verdict obtained in Golden Living FCA/Anti-Kickback Act lawsuit)
- Chambers USA: America’s Leading Lawyers for Business (2006-2014). In the 2011-2014 editions of Chambers USA, Mr. Salcido is listed under Healthcare: Regulatory & Litigation, Leading Individuals (Nationwide) (Band 1) and as Healthcare Leading Individuals (District of Columbia) (Band 1)
Mr. Salcido also won awards for his governmental service, including:
- 1993 Department of Health and Human Services Office of Inspector General Integrity Award (highest award OIG bestows to individuals outside of the OIG)
- 1992 United States Department of Justice Special Achievement Award (for Sustained Superior Performance of Duty)
- 1991 United States Department of Justice Special Achievement Award (for Sustained Superior Performance of Duty).
Mr. Salcido has authored books and more than twenty articles, including several cited in court decisions, regarding the FCA and healthcare fraud and abuse issues. His publications include—
- False Claims Act & the Healthcare Industry: Counseling & Litigation (2d ed. American Health Lawyers Ass’n 2008)
- 2014 Supplement to False Claims Act & the Healthcare Industry: Counseling & Litigation (American Health Lawyers Ass’n 2014)
Chapters in Books
- The False Claims Act in Health Care Prosecutions: Application of the Substantive, Qui Tam, and Voluntary Disclosure Provisions, in Health Care Fraud and Abuse: Practical Perspectives, Ch. 3 (3d ed. BNA Books 2013)
- 2014 Supplement to The False Claims Act in Health Care Prosecutions: Application of the Substantive, Qui Tam, and Voluntary Disclosure Provisions, in Health Care Fraud and Abuse: Practical Perspectives, Ch. 3 (3d ed. BNA Books 2013)
- False Claims Act: Health Care Applications and Defenses in Bloomberg BNA Health Law & Bus. Series No. 2650 (2012)
- When Legal Advice is Advisable, Coding for Chest Medicine, Ch. 28 (American College of Chest Physicians 2014)
- Addressing Challenges in Defense of a Health Care Fraud or Abuse Investigation, in Inside the Minds: Responding to Health Care Fraud and Abuse Investigations, Ch. 4 (Aspatore Books 2008)
- The Complete “Connected” Civil False Claims Act Laws and Cases, (American Health Lawyers Ass’n and LexisNexis, March 2007).
- The False Claims Act: Is it Narrowly Intended to Protect the Treasury or Broadly Intended to Enforce All Rules and Regulations? Journal of Health & Life Sciences Law, American Health Lawyers Association (June 2014)
- “The 2009 False Claims Act Amendments: Congress’ Efforts to Both Expand and Narrow the Scope of the False Claims Act,” 39 Public Contract Law Journal 741 (2010)
- “The Government’s Increasing Use of the False Claims Act Against the Health Care Industry,” The Journal of Legal Medicine (December 2003) [favorably cited in United States ex rel. Phillips v. Permian Residential Care Center, 386 F. Supp. 2d 879 (W.D. Tex. 2005) and United States ex rel. Bailey v. Ector County Hosp., 386 F. Supp. 2d 759 (W.D. Tex. 2004)]
- “Screening Out Unworthy Whistleblower Actions: An Historical Analysis of the Public Disclosure Jurisdictional Bar to Qui Tam Actions Under the False Claims Act,” 24 Public Contract Law Journal 237 (1995) [favorably cited in United States v. Board of Trustees of Stanford Univ., 161 F.3d 533 (9th Cir. 1998); United States ex rel. Findley v. FPC-Boron Employees’ Club, 105 F.3d 675 (D.C. Cir. 1997); United States ex rel. Ackley v. IBM, 76 F. Supp. 2d 654 (D. Md. 1999); and UnitedStates ex rel. Mistick PBT v. Housing Authority, 186 F.3d 376 (3d Cir. 1999) (dissenting opinion)]
- “The Government Declares War on Qui Tam Plaintiffs Who Lack Inside Information: The Government’s New Policy to Dismiss These Parties in False Claims Act Litigation,” 13 Health Lawyer 1 (October 2000) [favorably cited in United States ex rel. Bagley v. TRW, Inc., 212 F.R.D. 554 (C.D. Cal. 2003)]
- “HHS Expanded Use of Fraud Law’s ‘Corporate Death Sentence’ is Legally Suspect,” Washington Legal Foundation (June 2003)(co-authored with Ronald H. Clark and Gabriel L. Imperato)
- “The Public Disclosure Bar of the False Claims Act,” Health Care Fraud Litigation Reporter (April 2002)
- “The Government Unleashes the Stark Law to Enforce the False Claims Act: the Implications of the Government’s Theory for the Future of False Claims Act Enforcement,” The Health Lawyer (August 2001)
- “The Government’s Recent Law Enforcement Efforts: What Can Be Learned from the Latest FCA Complaints,” Health Care Fraud Litigation Reporter (June 2001)
- “The Supreme Court’s Ruling in Vermont Agency of Natural Resources v. United States and the Future of False Claims Act Qui Tam Actions,” 28 Health Law Digest 3 (American Health Lawyers Ass’n, August 2000)
- “Investigating Allegations of Fraud: Questions to Ask When Evaluating Whether Cost Report Claims Breach the False Claims Act,” Health Care Fraud Litigation Reporter (February 2000)
- “DOJ Must Reevaluate Use of False Claims Act in Medicare Disputes,” Washington Legal Foundation (Jan. 7, 2000)
- “Mixing Oil and Water: The Government’s Mistaken Use of the Medicare Anti-Kickback Statute in False Claims Act Prosecutions,” 6 Annals Health L.105 (1997).
Click here for a full list of Mr. Salcido’s articles.
Mr. Salcido has lectured extensively on defenses to FCA actions, health care coding compliance and FCA whistleblower litigation. He has been a guest speaker at more than fifty conferences, including national conferences sponsored by the American Bar Association, the American Health Lawyers Association and the Health Care Compliance Association. His speaking engagements have included—
- CLE International Qui Tam False Claims Act: All Points of View Conference, San Francisco, CA, Topic: Recent FCA Case Law Developments and Damages and Penalties (April 18, 2013)
- American Bar Association webinar, Topic: Health Care Fraud Abuse: False Claims Act Fundamentals (February 6, 2013)
- American Health Lawyers Association Fraud and Compliance Forum, Baltimore, Maryland, Topic: The Compliance Conundrum: What to Do When a Potential Whistleblower Appears in Your Office? (Sept. 30-Oct. 2, 2012)
- American Bar Association’s 9th National Institute on the Civil False Claims Act, Washington, D.C., Topic: Recent Developments on Damages and Penalties (June 6-8, 2012)
- American Bar Association’s 21st Annual National Institute on Health Care Fraud, Miami Beach, Florida, Topic: Criminal and Civil Liability for Lack of Medical Necessity (May 11-13, 2011)
- American Health Lawyers Association Fraud and Compliance Forum, Baltimore, Maryland, Topic: How the Government Proves and How a Provider Can Defend Medical Necessity Claims (Sept. 26-28, 2010)
- American Bar Association’s 8th Annual National Institute on the Civil False Claims Act and Qui Tam Enforcement, Washington, D.C., Topic: Recent Developments on Liability (June 3, 2010)
- American Conference Institute’s 10th National Forum on Fraud and Abuse in the Sale and Marketing of Drugs, New York, New York, Topic: Anticipating and Preparing for a Rise in Qui Tam Actions (March 24-25, 2010)
- American Conference Institute’s Advanced Forum on Financial Institution Fraud Enforcement & Financial Recovery Measures, New York, New York, Topic: Utilizing Recent FCA Cases and Enforcement Efforts on the Healthcare and Defense Fronts to Your Advantage as You Prepare for New FI Compliance Exposures (Nov. 16, 2009)
- American Health Lawyers Association Fraud and Compliance Forum, Baltimore, Maryland, Topic: How to Defeat the Government’s Claims that the Provider’s Services Lack Medical Necessity (Oct. 5, 2009)
- American Conference Institute 8th National Conference, Chicago, Illinois, Topic: Reducing Legal Risks in the Sale and Marketing of Medical Devices (Nov. 18, 2008)
- American Health Lawyers Association Fraud and Compliance Forum, Baltimore, Maryland, MD, Topic: How to Defeat the Government’s Claims that the Provider’s Services Lack Medical Necessity, (Oct. 6-7, 2008)
- American Bar Association Section of Public Contract Law, New York, NY, Topic: What a Defendant Must Know to be Liable under the False Claims Act: The Supreme Court’s Decision in Allison Engine Co. v. United States ex rel. Sanders (Aug. 11, 2008)
- American Bar Association Section of Litigation Annual Conference, Washington, D.C., Topic: Johnny Won’t You Blow Your Horn – Whistleblowers under the False Claims Act and the Sarbanes-Oxley Act (April 18, 2008)
- Sixth Annual Energy Litigation Conference, Houston, TX: “False Claims Act/Qui Tam Litigation” (October 10, 2007)
- American Bar Association Teleconference: “False Claims Act Updated: An Insiders’ View on Liability” (July 25, 2007)
- American Conference Institute State False Claims Summit, New York, NY: “Conducting Effective Investigations and Defending Actions in Parallel State and Federal FCA Proceedings” (May 23-24, 2007)
- American Conference Institute Advanced National Forum on False Claims Act Enforcement & Litigation, Washington, D.C.: “False Claims Act Actions 101: The Complete Primer” and “Getting the Most Paying the Least: Key Aspects of Damage Awards, Penalties, Taxes and Fees” (June 16-17, 2005)
- American Bar Association’s 2nd Annual Washington Healthcare Summit, Washington, D.C.: “Bringing and Defending Fraud and Abuse Cases: Recent Initiatives and Defenses” (Dec. 6-7, 2004)
- American Bar Association 14th Annual National Institute on Health Care Fraud 2004, New Orleans, LA: “Quality of Care and Fraud in Long-Term Care” (May 12-14, 2004)
- American Health Lawyers Association Teleconference: “False Claims Act and the Healthcare Industry: Recent Developments” (Jan. 27, 2004)
- American Bar Association’s 4th Annual Conference on Civil False Claims Act and Qui Tam Enforcement, Washington, D.C.: “Statutory Bars to Qui Tam Actions: Public Disclosure, Original Source and First to File” (Jan. 30-31, 2003)
- American Health Lawyers Association and Health Care Compliance Association Fraud & Abuse Compliance Forum, Washington, D.C.: “Preserving and Protecting Attorney-Client Information When Operating a Compliance Department” (Sept. 30, 2002)
- American Bar Association’s Conference on Emerging Issues in Healthcare Law 2002, Phoenix, AZ: “Emerging Issues in Health Care Fraud and Abuse” (March 1, 2002).
- American Health Lawyers Association’s Hospitals and Health Systems Law Institute, Scottsdale, AZ: “The Government’s Latest Enforcement Initiatives under the False Claims Act against Hospitals” (Feb. 7, 2002)
- American Bar Association’s 3rd Annual National Institute on the Civil False Claims Act and Qui Tam Enforcement, Washington, D.C.: “FCA Enforcement Against Medicare Part A Providers” (Nov. 29, 2001)
- American Bar Association’s Annual Meeting 2001, Chicago, IL: “Current Trends in Healthcare Fraud and Abuse” (Aug. 6, 2001)
- American Bar Association’s Conference on Health Care Fraud 2000, San Francisco, CA.: “Qui Tam False Claims Act Developments” (May 5, 2000)
- American Health Lawyers Association Conference on Long Term Care and the Law, Orlando, FL: “False Claims Act – Long Term Care and Home Health Agencies” (Feb. 2, 2000)
- American Bar Association’s Conference on The Civil False Claims Act and Qui Tam Enforcement, Washington, D.C.: “Recent Developments on Liability” (Jan. 13, 2000)
- American Health Lawyers Association Teleconference Seminar on “False Claims Act and the Healthcare Industry,” Washington, D.C.: “The Government’s and Private Person’s Enforcement of the False Claims Act and the Submission of Voluntary Disclosures” (June 4, 1999).
Click here for a full list of conferences at which Mr. Salcido has spoken.