tam lawsuits under the False Claims Act (FCA) has continued to drive civil enforcement, and the U.S. Department of Justice’s (DOJ) strike force model has been the main driver of the government’s criminal enforcement efforts. During 2021, we marked the 35th anniversary of the 1986 amendments to the FCA, which reinvigorated that Civil War-era statute after a long period of dormancy. Over the last 10 years, the government has recovered more than $25 billion in civil fraud settlements and judgments involving the healthcare industry, including $5 billion in FY2021. 1 For their part, qui tam relators have received nearly $4 billion in relator share payments, including more than $200 million in FY2021, as a reward for their efforts in bringing healthcare industry-related FCA lawsuits on behalf of the government during that same time period. We also marked the fifth anniversary of the Supreme Court’s landmark decision in Universal Health Services v. U.S. ex rel. Escobar . 2 In that pivotal case, the Supreme Court addressed the FCA’s materiality requirement, describing it as rigorous and demanding, and set forth a number of nonexclusive considerations to guide the materiality inquiry. Those important considerations primarily focus on the government’s actual conduct with respect to payment of purportedly false claims. Five years later, the Court’s discussion of materiality continues to have a profound impact on the manner in which FCA allegations are pleaded in complaints, investigated by the government and litigated by parties. The Court’s opinion has also been the impetus of
A LOOK BACK … A LOOK AHEAD
efforts to amend the FCA because of the perception by certain lawmakers that Escobar “has made it all too easy for fraudsters to argue that their obvious fraud was not material simply because the government continued payment.” 3 No doubt, healthcare providers defending against creative theories of FCA liability urged by relators or the government where the conduct at issue seemingly has had little or no impact on the government’s reimbursement decisions would disagree with that sentiment. Beyond the FCA’s materiality requirement, key FCA issues – particularly those involving FCA pleading standards and the requirement of pleading and proving
The filing of qui tam lawsuits under the False Claims Act has continued to drive civil enforcement, and the U.S. Department of Justice’s strike force model has been the main driver of the government’s criminal enforcement efforts.
We are pleased to bring you our 10th annual Healthcare Fraud and Abuse Review . We began the Review a decade ago with the intention of providing comprehensive coverage of the most significant civil and criminal enforcement issues facing healthcare providers each year. During that time, we have endeavored to cover key enforcement initiatives, analyze important case developments and document healthcare fraud settlements across the industry and to present those topics in a readily digestible format for our readers. While the healthcare industry has dealt with a decade of unprecedented change and challenges, the government’s healthcare fraud enforcement efforts have remained consistent. To be sure, areas of enforcement focus have shifted from time to time in order to address public health crises, fraud vulnerabilities within the healthcare industry or the need to prioritize resources. But the foundation has remained the same. The filing of qui
1 https://www.justice.gov/opa/press-release/file/1354316/download; https://www.justice.gov/opa/pr/ justice-department-s-false-claims-act-settlements-and-judgments-exceed-56-billion-fiscal-year. During that same time period, the government has recovered more than $37 billion in total civil fraud enforcement settlements and judgments, including $5.6 in FY2021. 2 https://www.law360.com/articles/1396615/where-fca-litigation-stands-5-years-after-escobar. 3 https://www.grassley.senate.gov/news/news-releases/senators-introduce-of-bipartisan-legislation-to- fight-government-waste-fraud.
HEALTHCARE FRAUD & ABUSE REVIEW 2021 BASS, BERRY & SIMS | 1
Powered by FlippingBook