Healthcare companies were once again the leading source of the Department of Justice’s (DOJ) False Claims Act (FCA) settlements and judgments last year. According to a DOJ news release, healthcare companies paid almost 90% of fraud settlement proceeds under the FCA in 2021. The Justice Department obtained more than $5.6 billion in total settlements and judgments under the FCA in the fiscal year ending September 30, 2021, which is the second largest annual total in the FCA’s history. Over $5 billion of that number relates to matters involving the healthcare industry, including hospitals, pharmacies, laboratories, drug and medical device manufacturers, managed care providers, hospice organizations, and physicians.
The largest settlements under the FCA were those reached with prescription drugmakers for their role in the opioid epidemic. A significant number of settlements also related to the Medicare Advantage Program, which pays a capitated amount to private health insurers for each patient enrolled in their plan according to a risk calculation. Other settlements involved claims of illegal kickbacks, claims of providing unnecessary medical services, and lawsuits filed under the FCA’s whistleblower provisions.
The DOJ’s healthcare fraud enforcement is more vigorous compared to other industries, in part due to the unique nature of the business of healthcare. The Department’s enforcement efforts attempt to restore funds to federal programs such as Medicare, Medicaid, and TRICARE, as well as prevent further losses by deterring others from engaging in fraudulent behavior. In many cases, the Department may be motivated to protect patients from medically unnecessary or potentially harmful actions. Providers should be aware that overpayment allegations are common, especially given the substantial effect that widespread healthcare fraud can have on individuals and entities throughout the US. The regulatory and business risks in healthcare are unlike other fields, in large part due to the web of complex and often vague regulatory and statutory restrictions, such as Stark law, the Anti-Kickback Statute (AKS), the Eliminating Kickbacks in Recovery Act (EKRA), and the Corporate Practice of Medicine doctrine (CPOM), among others. Healthcare providers should remain proactive in ensuring operations comply with the many different standards of practice governed by federal and state laws and regulations.
Originally introduced to address unscrupulous government contractors during the Civil War, the FCA has become a popular tool for prosecuting alleged healthcare fraud. In general, the FCA imposes civil liability for knowingly submitting false claims to the government. Importantly, the FCA carries severe consequences, including treble damages and a per-claim penalty that increases each year with inflation. The FCA also allows individuals to initiate the prosecution under a qui tam action, in which the government may decide to intervene and wherein the individual is entitled to a share of the government’s recovery.
For over 35 years, Wachler & Associates has represented healthcare providers and suppliers nationwide in a variety of health law matters. If you or your healthcare entity has any questions pertaining to healthcare fraud and abuse or healthcare compliance, please contact an experienced healthcare attorney at 248-544-0888 or wapc@wachler.com.