Harry R. Silver

Harry Silver is Counsel in the firm’s Healthcare, Litigation and White Collar Defense and Investigations practice groups.  He has 40 years of experience advising clients on healthcare issues and handling complex litigation at trial and on appeal.  Mr. Silver’s practice includes defending healthcare companies and government contractors in government investigations and litigation stemming from allegations of fraud and abuse; representing healthcare providers in Medicare and Medicaid reimbursement litigation before federal and state agencies and trial and appellate courts; and advising providers on compliance and reimbursement issues.  Mr. Silver also brings expertise advising government contractors on a variety of compliance and contracting issues.  He has represented government contractors in bid protests and contract disputes before administrative tribunals and federal trial and appellate courts, as well as reviewing and negotiating government contracts and preparing contract bids and proposals.

REPRESENTATIVE EXPERIENCE

• • Advise clients on contracts with Pharmacy Benefit Managers (PBMs), including advising retail pharmacies and long-term care pharmacies on issues involving their PBM contacts.
  • Advise employers on privacy/HIPAA, employment discrimination, and other legal issues involved in the implementation of employee wellness programs.
  • Conduct and supervise regulatory due diligence in the acquisition of healthcare providers and suppliers, particularly the acquisition of retail and long-term care pharmacies.
  • Advise clients that devise and administer corporate wellness programs on their contracts with employers.
  • Handled numerous internal investigations, bid protests, contract disputes, Medicare and Medicaid reimbursement litigation, and regulatory due diligence projects in connection with corporate acquisitions.

Representative Litigation

• • Briefed and argued appeals in 10 of the 12 U.S. Circuit Courts of Appeal, written briefs and cert. petitions in the U.S. Supreme Court, briefed and argued appeals in various state appellate courts.
  • Spacesaver Systems, Inc. v. Adam, 2014 WL 4216024 (Md. Aug. 27, 2014). Secured a unanimous ruling by the Maryland Court of Appeals (the highest court in Maryland) that an employee was wrongfully terminated because her employment contract provided that she could be terminated “for cause,” despite Maryland’s strong presumption that all employment is “at-will.” While the Court agreed with the employer that the contract did not meet the prerequisites of a “lifetime” employment contract, it characterized the agreement as a “continuous for cause” contract, much like tenure.
  • U.S. ex rel. Woodruff v. Hawaii Pacific Health, 560 F.Supp.2d 988 (D. Hawaii 2008), aff’d, 2010 WL 5072191 (9th Cir. 2010). Successfully defended qui tam (whistleblower) action that alleged that a hospital’s Medicaid claims were fraudulent, with the Ninth Circuit affirming the district court’s determination that the claims were not misleading, and therefore, were not false claims.
  • U.S. ex rel. Lockyer v. Hawaii Pacific Health, 490 F.Supp.2d 1062 (D. Hawaii 2007), aff’d, 2009 WL 2700321 (9th Cir. 2009). Successfully defended healthcare provider in another qui tam  action alleging that an outpatient clinic submitted false claims to Medicare, with the Ninth Circuit affirming the district court’s ruling that a regulation negates the scienter necessary to establish a violation of the False Claims Act.
  • U.S. ex rel. Crews v. NCS Healthcare, 460 F.3d 853 (7th Cir. 2006). Represented long-term care pharmacy in a qui tam action that alleged that the pharmacy defrauded Illinois Medicaid by dispensing misbranded pharmaceuticals to Medicaid beneficiaries. The court ruled that the Food, Drug and Cosmetic Act could not be enforced through the False Claims Act and that statistical probabilities alone were insufficient to prove that the misbranded pharmaceuticals had been dispensed to Medicaid beneficiaries.
  • S. ex rel. Quinn v. Omnicare, 382 F.3d 432 (3d Cir. 2004), successful defense of a qui tamaction alleging that a long-term care pharmacy accepted the return of pharmaceuticals paid for by New Jersey Medicaid, and billed Medicaid a second time when the same pharmaceuticals were redispensed. The Third Circuit ruled that in order to establish a violation of the False Claims Act, it was necessary to prove that Medicaid paid twice for the same pill, and that statistical probabilities alone were insufficient to carry this burden.
  • Obtained a federal court injunction preventing the Joint Commission on the Accreditation of Healthcare Organizations (“Joint Commission” or “JCAHO”), a private nonprofit tax-exempt accreditation organization, from issuing a non-accreditation determination against a major health system.

PREVIOUS EXPERIENCE

• • • Patton Boggs LLP, Partner
    • Akin Gump Strauss Hauer & Feld, Partner
    • U.S. Department of Justice, Civil Division, Appellate Section

HONORS AND AWARDS

• • • American Lawyer Media, Top Rated Lawyer in Healthcare Law, 2013
    • Listed in Washington, D.C. Super Lawyers, 2013
    • AV® Preeminent™ Peer Review Rated by Martindale Hubbell
    • Listed in Who’s Who in America (1994-2010), Who’s Who in American Law (1987-1991, 2002-2010), Who’s Who in the East (2002-2010) and Who’s Who in the World (2006-2009).

PRO BONO AND COMMUNITY INVOLVEMENT

• • • Submitted an amicus brief, in Holmes v. Louisiana, Sup.Ct. No. 08-1358, seeking Supreme Court review of whether an individual born with fetal alcohol syndrome should have been subject to the death penalty.
    • Successfully filed suit against the owner of an apartment building who refused to accept HUD housing vouchers.
    • Successfully filed suit against a retail chain for failure to make its stores accessible to persons with disabilities.
    • Member of Board of Trustees, Washington Lawyers’ Committee for Civil Rights and Urban Affairs.

PUBLICATIONS AND SPEECHES

Selected Publications

• • • Author, “The Kane decision: A flawed interpretation of the 60-day rule,” Compliance Today (January 2016).
    • Co-author, “New HIPAA Rules Regarding Genetic Information Affect Employers, Group Health Plans, Health Insurers and Healthcare Providers,” Duane Morris Alert, February 25, 2013; republished by American Health Lawyers Association (AHLA) Health Lawyers Weekly (March 15, 2013).
    • Co-editor, AHLA Healthcare Compliance, Legal Issues Manual, Third Edition.
    • Author, False Claims Act chapter, AHLA Healthcare Compliance, Legal Issues Manual (all three editions).
    • Co-author, “Legal Considerations and Compliance,” chapter in AHLA Healthcare Compliance, Legal Issues Manual, Third Edition.
    • Author, “Fundamentals of Fraud and Abuse Laws,” chapter in AHLA Deciphering Codes: Fraud & Abuse for Coders and Coding Insight for Healthcare Lawyers.
    • Author, chapter on Medicare and Medicaid compliance contractors, The California Hospital Association Compliance Manual, 2011 edition.

Selected Speaking Engagements

• • • “The Changed Enforcement Environment,” Healthcare Financial Management Association Region 2 Conference, Greensboro, Georgia (February 22, 2012).
    • Moderator, “The New Rules of Engagement: New Weapons in the Government’s Enhanced Enforcement Arsenal” DC Bar (November 29, 2011).
    • “ZPICs are Coming: Will You be Ready?” presented at the Annual Meeting of the Healthcare Association of Hawaii (October 20, 2010).
    • “Providers Beware: Operating Under Heightened Government Enforcement” presented at Breakfast Briefings (June 24, 2010, Houston, TX; June 22, 2010, Honolulu, HI).
    • “Fraud Enforcement, Compliance and Integrity in Health Reform: Meeting the Challenge When the Government Ups the Ante” (Webinar, June 10, 2010).
    • “A Fresh Look at the Amended FCA” (Webinar, July 28, 2009).
    • “Failure to Have an Effective Compliance Program Can be Reckless” presented at the annual meeting of Managed Health Care Associates (February 2009, Las Vegas, NV).

MEMBERSHIPS AND AFFILIATIONS

• • Member of American Health Lawyers Association and former Member of its Quality Council.
  • Former Member of Programs and Education Committee, D.C. Bar Health Law Section.
  • Member of American Bar Association and former Vice Chair, Government Submissions Subcommittee of the Health Law Section.