Harry R. Silver
Special Counsel
Duane Morris LLP
505 9th Street, N.W., Suite 1000
Washington, DC 20004-2166
USA
Phone: +1 202 776 7807
Fax: +1 202 478 2666
Email: HRSilver@duanemorris.com

Harry R. Silver practices in the area of health law with a focus on defending healthcare providers and government contractors in investigations and litigation stemming from allegations of fraud and abuse, primarily under the Federal False Claims Act; representing healthcare providers in Medicare and Medicaid reimbursement disputes; and pursuing rulemaking challenges under the Administrative Procedure Act.

Mr. Silver is a 1971 graduate of Columbia Law School, where he was a member of the editorial board of the Columbia Law Review. After graduation from law school, he served as law clerk to the Hon. Harold R. Medina of the U.S. Court of Appeals for the Second Circuit, and with the Appellate Section of the Civil Division of the United States Department of Justice, before entering private practice in 1978.

A member of the District of Columbia and New York bars, he has appeared before federal and state courts throughout the United States, both at the trial and the appellate level, as well as before federal administrative agencies and state Medicaid agencies.

Mr. Silver is an active member of the American Health Lawyers Association and is a frequent author and speaker on health care issues, particularly those involving health care fraud and abuse.

Areas of Practice

• Health Law

Representative Matters

• 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), defended a hospital in a qui tam action that alleged that claims it submitted to Hawaii Medicaid were fraudulent because they implied that procedures were performed or supervised by physicians when, in fact, they were performed by nurse practitioners. The U.S. Court of Appeals for the Ninth Circuit affirmed the district court's determination that the claims were not misleading and were therefore not false claims. The Ninth Circuit also affirmed the district court's rejection of the allegations that the procedures required physician supervision and that the nurse practitioners lacked the appropriate license.
• 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), defended a clinic in a qui tam action that alleged fraudulent billing for chemotherapy performed by nurse practitioners but billed by the supervising physician under Medicare's "incident to" rules. The U.S. Court of Appeals for the Ninth Circuit affirmed the district court's ruling that a good-faith interpretation of 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), defended a 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 by means of a general certification to comply with all applicable laws. Relying on U.S. ex rel. Quinn v. Omnicare, 382 F.3d 432 (3d Cir. 2004), the court also ruled that in order to establish a violation of the False Claims Act, it was necessary to prove that it was the misbranded pharmaceuticals that had been dispensed to Medicaid beneficiaries, and that statistical probabilities alone were insufficient to carry this burden.
• U.S. ex rel. Quinn v. Omnicare, 382 F.3d 432 (3d Cir. 2004), defended a long-term care pharmacy in a qui tam action that alleged the pharmacy accepted the return of pharmaceuticals that had been dispensed to New Jersey Medicaid beneficiaries and then redispensed them to other Medicaid beneficiaries without crediting Medicaid for the returns. The court ruled that in order to establish a violation of the False Claims Act, the plaintiff was required to demonstrate that specific medication that had been dispensed to a Medicaid beneficiary was then redispensed to another Medicaid beneficiary, and that statistical probabilities alone were insufficient to carry this burden.
• U.S. ex rel. Schell v. Battle Creek Health System, 2004 WL 784978 (W.D. Mich. 2004), defended a hospital in a qui tam action alleging that Medicare was charged for a full multi-dose vial of anesthesia when only a single dose was administered.
• U.S. ex rel. Schwartz v. Coastal Healthcare Group, 2000 WL 1595976 (10th Cir. 2000), defended a company that provided hospitals with emergency room physicians against allegations of kickbacks.

Professional Activities

• American Health Lawyers Association
  - Quality Council
  - Fraud and Abuse Practice Group
• District of Columbia Bar
  - Health Law Section
  -- Programs and Education Committee of the Health Law Section
• American Bar Association
  - Health Law Section
  -- Former Vice-chair, Government Submissions Subcommittee

Admissions

• District of Columbia
• New York
• Supreme Court of the United States
• U.S. Court of Appeals for the First Circuit
• U.S. Court of Appeals for the Third Circuit
• U.S. Court of Appeals for the Fifth Circuit
• U.S. Court of Appeals for the Seventh Circuit
• U.S. Court of Appeals for the Eighth Circuit
• U.S. Court of Appeals for the Ninth Circuit
• U.S. Court of Appeals for the Tenth Circuit
• U.S. Court of Appeals for the District of Columbia Circuit
• U.S. Court of Appeals for the Federal Circuit
• U.S. District Court for the District of Columbia
• U.S. District Court for the District of Maryland
• U.S. District Court for the Western District of Michigan
• U.S. Court of Federal Claims

Education

• Columbia University School of Law, J.D., 1971
  - Editorial Board, Columbia Law Review
• Temple University, B.A., cum laude, 1968

Civic and Charitable Activities

• Washington Lawyers' Committee for Civil Rights and Urban Affairs
  - Board of Trustees
• Temple Micah
  - Former Vice President
  - Former Member of Board of Directors

Honors and Awards

• Listed in Washington, D.C. Super Lawyers, 2013
• Commendation from National Organization on Fetal Alcohol Syndrome for pro bono amicus brief in support of cert. petition in death penalty case
• Commendation from Washington Lawyers' Committee for Civil Rights and Urban Affairs for work on a disability rights case
• Listed in Who's Who in America, 1994-2010
• Listed in Who's Who in American Law, 1987-1991; 2002-2010
• Listed in Who's Who in the East, 2002-2010
• Listed in Who's Who in the World, 2006-2009
• AV® Preeminent™ Peer Review Rated by Martindale-Hubbell

Selected Publications

• Co-author, "New HIPAA Rules Regarding Genetic Information Affect Employers, Group Health Plans, Health Insurers and Healthcare Providers," Duane Morris Alert, February 25, 2013
• Co-author, "Overview of 2013 Amendments to HIPAA Privacy, Security, Breach Notification and Enforcement Rules," Duane Morris Alert, January 29, 2013
• Author, "Deadline Looming (March 23, 2013) for Nursing Facilities to Have 'In Operation' an 'Effective Compliance and Ethics Program,'" Duane Morris Alert, January 28, 2013
• Author, "The Government's New Weapons Against Health Care Fraud: How to Protect Yourself and Your Organization," CCH Health Care Compliance Letter, July 17, 2012
• Co-author, "New Weapons against Fraud and Abuse Under The Affordable Care Act," South Florida Legal Guide, Midyear 2012
• Co-author, "mHealth Stakeholders: Bullet List of Legal Considerations," mHealth Newsletter, May 21, 2012; republished by Law360, June 4, 2012
• Author, "National Fraud Prevention System Means More Audits, Screening and Collection of Provider Data," Duane Morris Alert, April 12, 2012
• Author, "CMS Rule Allowing Payment Suspension Due to 'Credible Allegations of Fraud," BNA's Health Care Fraud Report, March 23, 2011
• Co-editor, American Health Lawyers Association's (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 the AHLA's Deciphering Codes: Fraud & Abuse for Coders and Coding Insight for Healthcare Lawyers
• Author, chapter on Medicare and Medicaid compliance contractors, The California Hospital Association's Compliance Manual, 2011 edition
• Co-author, "In-House Counsel Beware: The False Claims Act May Impact Your Business," Association of Corporate Counsel (ACC) Docket, November 2009

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 Health Law Section, November 29, 2011
• "ZPICs Are Coming: Will You Be Ready?" Annual Meeting of the Healthcare Association of Hawaii, October 20, 2010
• "Providers Beware: Operating Under Heightened Government Enforcement," Breakfast Briefings, Houston, June 24, 2010; and Honolulu, June 22, 2010
• "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," Annual Meeting of Managed Health Care Associates, Las Vegas, February 2009