Raleigh, N.C. (January 23, 2020) - The numbers are in – the Department of Justice (DOJ) recently published its annual breakdown of false claims litigation undertaken by its Civil Division. The report show new matters filed by year, the DOJ's recoveries through judgments and settlements, and the share of the recoveries by relators in qui tam litigation. For healthcare providers, here are some quick takeaways:
1. False Claims Suits with DHHS Means High Stakes Litigation
Last year, relators filed 636 false claims suits - 70% (449) of them arose in the context of Department of Health & Human Services (DHHS) programs. In addition to these qui tam lawsuits, the DOJ filed an additional 146 false claims suits - 38% (56) of those cases were DHHS related. On average, there were more than nine new healthcare fraud case filed every week. This also means that nearly two-thirds of all False Claims Act litigation in 2019 was against providers who billed programs like Medicaid and Medicare. These numbers are more striking when compared to the DOJ’s recoveries.
$2.605 billion - that’s the amount recovered by the DOJ for false claims submitted to the DHHS in 2019. Relatively speaking, the DOJ’s false claims judgments and settlements for DHHS claims constituted 82% of its false claims recoveries last year. Another achievement - this makes a solid decade for the DOJ in recovering in excess of $2 billion annually in healthcare false claims cases. Thus, DHHS false claims recoveries remain disproportionately higher than other categories of false claims suits. Its largest single recovery this past year was $500 million, arising out of its case against pharmaceutical company Reckitt Benckiser Group, PLC.
Providers participating in DHHS programs need to be aware of the high stakes involved with false claims allegations. To mitigate their exposure, providers should work with legal counsel to ensure compliance with the DOJ’s 2019 memorandum regarding corporate compliance programs. Not only can they help mitigate the civil damages component of False Claims Act litigation, but they can also be an important tool for avoiding potential criminal allegations.
2. Relators Still Drive False Claims Act Litigation
Relators accounted for 636 new false claims suits in 2019 with nearly two-thirds arising in the context of DHHS claims. Qui tam actions accounted for 73% ($1.909 billion) of the DOJ’s recovery in healthcare false claims litigation. Of that amount, relators received a total of $244,406,479 in their share of recoveries. Notably, the largest portion of these recoveries occurred when the government and relators worked together: $1.637 billion was recovered when the government intervened in a qui tam action while $272.1 million was recovered in cases where the DOJ declined to participate.
The continued strength of qui tam actions should remind those participating in DHHS programs to avoid even the near occasion of fraud. Employees and agents can have strong personal incentives - including the economic incentive of sharing in a recovery - to bring false claims allegations against providers. As a result, healthcare providers should be aware that an effective way to avoid false claims litigation is by maintaining a healthy workplace culture that incentivizes internal reporting and corrections rather than making employees or agents resort to whistleblowing.