10
doc • Winter 2014
Kentucky
The DOJ Increases Scrutiny
of Whistleblower False
Claims Act Suits
By Emily M. Hord
The Criminal Division
of the Department of
Justice (“DOJ”) recently
announced that it will
review all complaints filed
under the qui tam provisions of the federal
False Claims Act (“FCA”) to determine if a
parallel criminal investigation is appropriate. This announcement came during a
September 17, 2014 speech by the recentlyconfirmed Assistant Attorney General for
the Criminal Division of the DOJ, Leslie
Caldwell, at the Taxpayers Against Fraud
Education Fund Conference in Washington
D.C. This DOJ announcement signals a
departure from prior policy, which allowed,
but did not require, the Criminal Division to
investigate Civil Division claims. In the past,
the decision to open a criminal investigation was left to the discretion of each U.S.
Attorney’s Office.
Now, the Civil Division of the DOJ will
share all new qui tam complaints with the
Criminal Division as soon as they are filed.
This change in procedure will likely be
detrimental for defendants in future qui tam
cases. With the Criminal Division more
involved in False Claims cases, settlements
with the government may become more
difficult due to the need for approval from
both the Civil and Criminal Divisions.
Defendants may also face increased pressure
to accept settlement offers from the government to avoid high-risk criminal penalties.
In 2009, Attorney General Eric Holder and
Department of Health and Human Services
Secretary Kathleen Sebelius announced
the creation of an interagency task force,
the Health Care Fraud Prevention and
Enforcement Action Team (“HEAT”), to
increase coordination and optimize criminal
and civil enforcement. This coordination
yielded momentous results: the Department
recovered $12.1 billion dollars under the
False Claims Act from January 2009 through
the end of the 2013 fiscal year. Most of
these recoveries relate to fraud against
Medicare and Medicaid Programs. In fiscal
year 2013 alone, the DOJ recovered $2.6
billion dollars for health care fraud violations and brought health care fraud-related
prosecutions against 345 individuals.
Thus, providers seeking reimbursement
from federal programs should be aware that
non-compliance risks have never been greater. Providers or entities faced with a civil
qui tam suit should immediately evaluate
their exposure to possible criminal charges.
Because an ounce of prevention is worth a
pound of cure, companies should closely
review their compliance programs and pay
special attention to the protocols in place to
prevent and detect potential false claims or
billing violations.
About the Author
Emily M. Hord is an Associate of McBrayer,
McGinnis, Leslie & Kirkland, PLLC. Ms.
Hord concentrates her practice in healthcare
law and is located in the firm’s Lexington
office. She can be reached at [email protected]
or at (859) 231-8780.
This article is intended as a summary of newly
enacted federal and state law and does not constitute legal advice.