The Department of Justice (DOJ) recently announced that it recovered $3.8 billion in settlements and judgments in civil False Claims Act cases in fiscal year (FY) 2013, including health care fraud recoveries totaling approximately $2.6 billion. The DOJ notes that about $1.8 billion in recoveries involved alleged false claims for drugs and medical devices under federally insured health programs (with an additional $443 million recovered for state Medicaid programs). The Department also reports that in FY 2013, a record 752 qui tam/whistleblower suits were filed and $2.9 billion was recovered in such suits (with whistleblowers recovering $345 million).
A new Government Accountability Office (GAO) report breaks down the provider types most frequently involved with Medicare, Medicaid, and Children’s Health Insurance Program fraud cases in 2010. Highlights include the following:
- Medical facilities (including medical centers, clinics, or practices) and DME suppliers were the most-frequent subjects of criminal health care fraud investigations, comprising about 40% of subjects. Of the 7,848 subjects associated with criminal cases, about 1,100 were charged and 85% of those charged were found guilty or pled guilty or no contest.
- Hospitals and medical facilities were the most-frequent subjects investigated in civil health fraud cases (38% of 2,339 subjects), but more than half of the subjects of civil cases were not pursued for various reasons. In 2010, 88% of subjects investigated in civil cases were investigated in qui tam cases. Of these, 52% cases were either voluntarily dismissed by the relator (34%) or were declined by the US Attorney’s Offices or the Department of Justice’s Civil Division (18%).
- Almost 2,200 individuals and entities were excluded from federal programs for health care fraud convictions and other reasons (including license revocation and program-related convictions). About 60% of excluded individuals were in the nursing profession.
- Based on data from 10 state Medicaid Fraud Control Units (MFCU), over 40% of the 2,742 subjects investigated for health care fraud in Medicaid and CHIP in 2010 were home health care providers and health care practitioners. Civil health care fraud cases pursued by these MFCUs in 2010 resulted in judgments and settlements totaling nearly $829 million, with pharmaceutical manufacturers paying more than 60% of that amount.
Reed Smith’s Life Sciences Legal Update blog discusses a recent decision by the United States District Court for the Southern District of Ohio that may make it much harder for qui tam relators to rely upon stolen medical records or patient information in False Claims Act ("FCA") whistleblower actions. In the decision, Cabotage v. Ohio Hospital for Psychiatry, No. 11-cv-50 (S.D. Ohio July 27, 2012), the district court held that a registered nurse was not permitted to support her allegations of FCA violations by relying on confidential protected health information that she surreptitiously removed from the hospital where she was employed.
Fifth Circuit Upholds Ability of Government Employee Fraud Investigators to Bring Qui Tam False Claims Actions
Reed Smith's Global Regulatory Enforcement Law Blog recently featured a post on the Fifth Circuit’s ruling in United States ex rel. Little v. Shell Exploration & Production Co., in which the Court held that government employees are entitled to bring qui tam actions under the False Claims Act (FCA) – even if their federal job function is to investigate fraud on behalf of the government.