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What's New with the False Claims Act and Healthcare Compliance?

April 1, 2021
April 1, 2021

The False Claims Act continues to drive much of healthcare compliance and the government actions taken to enforce this directive. A team of content experts from HCCS, A HealthStream Company, recently attended the Health Care Compliance Association’s 2018 Enforcement Conference, where some sessions focused on how activity under the False Claims Act remains strong.

Presenters shared that the False Claims Act is always on the agenda as it continues to be the most effective law the government has for snagging healthcare providers in the fight against fraud, waste and abuse. And, with its qui tam, or whistleblower provision, it is also the most powerful. The qui tam provision allows anyone to file a False Claims Act suit on behalf of the government. Should the suit be successfully prosecuted, the plaintiff receives a share of the monies recovered.

Qui Tam and Whistleblower Statistics

Sarah Bogni, Assistant U.S. Attorney, Matthew Organ, JD and J.D. Thomas, JD presented some staggering statistics:

  • Qui tam filings have risen to 674 in 2017 across all industries as compared to just 30 in 1987. Some 73% of these were healthcare cases.
  • Qui tam settlements and judgments have grown to nearly $4 billion in 2017 across all industries as compared to zero dollars in 1987. Healthcare cases accounted for 66% of the 2017 total.
  • Whistleblower awards in 2017 were nearly $393 million across all industries while healthcare-related awards accounted for 72% of that.
  • In most of the cases, the government elected to get involved, greatly increasing the probability of successful prosecution. In 2017, the government declined to intervene in only 11% of qui tam cases filed.

Despite its advanced age–155 years since enactment!—the False Claims Act continues to evolve. Issues that persist in troubling defendants in False Claims Act cases include:

  • Did the alleged violation matter to the government? In other words, if there were requirements that were not met by a provider (e.g., a condition of participation), yet the government paid the claim despite knowledge of those unmet requirements, then the violation is not "material" to the government. Based on a high-profile case commonly referred to as "Escobar," materiality continues to be a hot topic.
  • In addition to the effects of Escobar, medical necessity, intent, and recent memos from the Department of Justice continue to influence case law, and thus, the interpretation and enforcement of the False Claims Act.