WASHINGTON (Legal Newsline) — The Department of Justice announced in December that it recovered more than $3.5 billion in settlements and judgments from civil cases involving the False Claims Act for the fiscal year ending Sept. 30.
Head of the Justice Department’s Civil Division, Benjamin Mizer, made the announcement on Dec. 3. It's the fourth consecutive year that the department obtained more than $3.5 billion in FCA settlements. The previous year, the DOJ saw record a record recovery of $5.69 billion in recovery.
“People who are experienced practitioners, as I am understand, that these numbers have been very large for quite a long time. 2015 was large, but not historically large,” said Hope Foster, attorney for Mintz Levin and Chair of the firm's Health Care Enforcement Defense Practice.
The FCA cases involve fraud and false claims against the government, with health care fraud leading in returns, followed by cases involving government contracts and housing and mortgage fraud. Most of the claims result from the Act’s whistleblower provisions, or qui tam, that allow individuals to file on behalf of the government.
“These cases seem to be driven by a variety of investigative techniques which are becoming increasingly sophisticated, so we’ve got a very large number of civil recoveries initiated by whistleblowers in order to benefit from the cases.” Foster said.
Of the $3.5 billion obtained by the DOJ, more than $2.8 billion related to suits filed under the whistleblower provision, a result of a 1986 amendment to the Act made by Congress that increased incentives for whistleblowers.
Under FCA laws, if the government prevails in its action, the whistleblower obtains up to 30 percent of the recovery, which resulted in $597 million in awards for whistleblowers and their attorneys in 2015.
The FCA system has grown in its span and sophistication, and not just regarding the qui tam provisions, according to Foster.
“In the 90s, the cases were typically brought regarding traditional Medicare parts A and B, but since then of course we have had amendments which have added parts C and D. C and D are expensive and involve a share of federal dollars,” Foster said.
Government programs like Medicare are targets of FCA claims. The DOJ reported that $1.8 billion of the returns involved healthcare fraud.
The fraud claims against healthcare affiliates were so ubiquitous that the Attorney General and the Secretary of the Department of Health and Human Services, the department that manages Medicare and Medicaid, created a task force in 2009 to increase criminal and civil enforcement of the Act. The force is known as the Health Care Fraud Prevention and Enforcement Action Team (HEAT).
“I think anybody providing healthcare services that are subject to the federal healthcare program (Medicare, Medicaid, and increasingly TRICARE) should be cognizant of the fact that the FCA applies to the services they are providing,” Foster said.
“They need strong and robust compliance programs that are continually updated to account for developments in these areas. In addition to whistleblowers bringing these cases, the government is bringing cases of its own as a result of an increasingly sophisticated data analyses."
In the announcement, Mizer expressed appreciation and encouragement to the public servants who pursued the FCA cases, suggesting confidence for the future of FCA claim returns for the government.