DeveLopments in faLse cLaims act Litigation
Trial & litigation Section Chair: Brandon Faulkner – Holland & Knight, LLP
False Claims Act relator’ s( whistleblower’ s) counsel and defense counsel can expect increased enforcement activity by the United States Department of Justice in the months and years ahead. In a press release and parallel speech by U. S. Attorney General Jeff Sessions last month, the DOJ announced the creation of the Prescription Interdiction and Litigation( PIL) Task Force. According to the DOJ, The PIL Task Force will combat the opioid crisis at every level of the distribution system, from manufacturers to distributors( including pharmacies, pain management clinics, drug testing facilities, and individual physicians).
In his speech, Attorney General Sessions said,“ The PIL Task Force will tackle the opioid crisis‘ at its root’ and will use the False Claims Act( FCA) and other tools to crack down on pain management clinics, drug testing facilities and physicians who over-prescribe opioids.”
Closer to the Tampa Bay area, the United States Attorney for the Middle District, Maria Chapa Lopez, reiterated AG Sessions’ remarks and stressed her office will“ use every enforcement tool available, both civil and criminal, in the fight against the opioid crisis” and against“ fraudsters” generally. Using the False Claims Act as an enforce- ment tool, her office has collected
hundreds of millions of dollars in civil settlements with individual physicians, hospitals, healthcare companies, and other businesses in recent years. That enforcement activity is expected to increase.
The False Claims Act, 31 U. S. C. §§ 3729- 3733, is the federal law that imposes liability on persons and companies who defraud govern- mental programs. It is the federal government’ s primary litigation tool in combatting fraud against the government. The law includes a qui tam provision that allows people who are not affiliated with the government, called“ relators” under the law, to file actions on behalf of the government( informally called“ whistleblowing”). Relators filing under the FCA stand to receive a portion of any recovered damages. Claims under the FCA have typically involved health care( Medicare, Medicaid, and Tricare), military, or other government spending programs and dominate the list of largest pharmaceutical payments.
The PIL Task Force will expand on the efforts of the Opioid Fraud and Abuse Detection Unit and will use sophisticated data analytics to identify and prosecute or sue( using the FCA) individuals and companies who are contributing to the opioid epidemic.
© Can Stock Photo / FabioBerti the DoJ’ s use of the false claims act as a tool in its enforcement efforts to deal with the opioid crisis( and fraud generally) is a testament to the fca’ s effectiveness in uncovering fraud and misuse of government funds.
In 2016, the federally funded Medicare prescription drug program paid more than $ 4 billion for opioids. The DOJ sees the FCA as a natural fit for fighting opioid abuse. Last year, the government settled FCA cases against a number of entities over opioid sales, including several pharmacies. The PIL Task Force will also review existing state and local government enforcement actions and, through analytic research, determine if federal law( the FCA or other federal statutes) can assist in a recovery. This trend expands the focus on prescribers and health care providers who submit claims to federal health care programs for opioid prescriptions, as well as drug treatment and drug testing services.
The DOJ’ s use of the False Claims Act as a tool in its enforcement efforts to deal with the opioid crisis( and fraud generally) is a testament to the FCA’ s effectiveness in uncovering fraud and misuse of government funds.
Author: Kevin J. Napper – Law Office of Kevin J. Napper, P. A.
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