False Claims Act settlements totaled more than $5.6 billion in the past federal fiscal year, the second-largest amount ever collected by the government in FCA actions in one year, according to the Department of Justice (DOJ).
The DOJ announced Tuesday the majority of the settled claims in fiscal year 2021 (FY2021), worth more than $5 billion, involved matters in the healthcare industry, “including drug and medical device manufacturers, managed care providers, hospitals, pharmacies, hospice organizations, laboratories, and physicians.”
The 2021 federal fiscal year ran from Oct. 1, 2020, through Sept. 30, 2021.
“Ensuring that citizens’ tax dollars are protected from fraud and abuse is among the department’s top priorities,” said Acting Assistant Attorney General Brian Boynton of the DOJ’s Civil Division in the announcement. “The False Claims Act is one of the most important tools available to the department both to deter and to hold accountable those who seek to misuse public funds.”
The $5.6 billion is a marked increase over FY2020, when more than $2.2 billion was collected to resolve FCA-related cases. The biggest fiscal year ever for FCA-related settlements was in 2014, when the government recovered $5.69 billion, according to a DOJ press release.
Most false claims actions are filed under the act’s whistleblower, or qui tam, provisions that allow individuals to file lawsuits alleging false claims on behalf of the government, the DOJ said. If the government prevails in a qui tam action, the whistleblower typically receives a portion of the recovery ranging between 15 and 30 percent.
Whistleblowers filed 598 qui tam lawsuits in FY2021, and this past year, the department reported settlements and judgments exceeding $1.6 billion. The government paid out $237 million to the whistleblowers in those claims.
In October, the DOJ announced it will be more aware of cybersecurity-related violations under the FCA, part of an initiative that will seek to punish companies that do not report breaches in a timely manner, maintain lax cybersecurity protocols, or misrepresent the controls they claim to have in place.
Brett Johnson, partner at Snell & Wilmer and a specialist in FCA cases involving government contracting, said the biggest cases take the most time, at least two years and often more. The settlements generating these large numbers are being driven by cases that likely began during the Trump administration, he said.
Another takeaway is whistleblowers in the healthcare industry should take notice of the size of some of these settlements.
“If I’m a whistleblower in the healthcare industry, I’m seeing a clear incentive to come forward,” he said.
Whistleblowers for FCA cases in other areas—like government contracting—have less incentive. Only about $600,000 worth of the settlements came in areas other than healthcare.
“For some folks, this is not that big a deal,” he said.
The largest FCA-related settlement in FY2021 was an opioid-related case involving Indivior Solutions, which agreed to pay $600 million. The case followed a larger $1.4 billion settlement Indivior’s former parent company, Reckitt Benckiser Group, reached in 2019 to resolve criminal and civil liability associated with the marketing of the opioid addiction treatment drug Suboxone.
The DOJ also settled an opioid-related case with Purdue Pharma, which agreed to pay more than $8 billion to resolve civil and criminal claims against it. Only $225 million of that sum represented the resolution of FCA-related charges.
Other large FCA-related cases in FY2021 included a $160 million settlement by Arriva Medical, a mail-order diabetic testing supply company, to resolve charges related to a kickback scheme and a $140 million settlement with a chain of pain management clinics based in South Carolina.
The DOJ settled a variety of other kinds of cases related to FCA claims, including for unnecessary medical services, procurement fraud, Covid-related fraud, and individuals charged with perpetrating various frauds.
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