On February 7, 2023, the Department of Justice (DOJ) published its annual False Claims Act (FCA) statistics covering FY2022 recoveries (ending September 30, 2022). And although the data shows a drop-off from 2021 in some key areas, it would be misleading to describe the 2022 figures as anything but significant.
According to the statistics, the DOJ recovered over $2.2 billion under the FCA in 2021, nearly 89% ($1.96 billion) of which came from whistleblower actions brought under FCA’s the qui tam provisions. Those provisions allow whistleblowers to bring potential FCA violations to the DOJ’s attention, in exchange for a whistleblower share of anywhere between 15% and 30% of the DOJ’s recovery.
One interesting datapoint is the percentage of 2022 qui tam recoveries attributable to cases where the DOJ intervened (or otherwise pursued) the action, compared to cases where the DOJ declined to intervene. Specifically, out of the nearly $2 billion in qui tam recoveries, over 60% (over $1.1 billion) came from cases in which the government declined to intervene. This is the first time since 1987 (when the DOJ began keeping track of these statistics) that the DOJ recovered more through declined cases than through intervened cases.
And although the statistics indicate a significant drop in total FCA recoveries from 2021 to 2022 ($5.7 billion in 2021 vs. $2.2 billion in 2022), it appears that this decrease is most likely an anomaly resulting from a couple of very significant cases that settled in FYI 2021, including a multi-billion dollar settlement from Purdue Pharma. Indeed, the 2022 recoveries are in line with the DOJ’s recoveries in 2020 ($2.26 billion). There were also more new qui tam actions filed in 2022 (652) than were filed in 2021 (598), as well as an increase in the number of new non-qui tam actions (296 in 2022 vs. 212 in 2021). Total Relator share awards were also up in 2022 ($488 million in 2022 vs. $263 million in 2021).
As usual, the majority of FCA action in 2022 was from within the healthcare industry. Out of the total recovery of $2.2 billion, over 77% ($1.7 billion) came from healthcare-related cases. And out of the 652 new qui tam actions filed in 2022, 57% were healthcare-related. Some more healthcare-specific statistics:
- Total healthcare-related FCA recoveries (qui tam and non-qui tam combined) in FY2022: $1.76 billion (down from over $5 billion in 2021);
- Total qui tam recoveries in healthcare-related cases in FY2022: $1.65 billion (up from $1.53 billion in 2021);
- Number of new healthcare-related qui tam actions filed in FY2022: 371 (down from 389 in 2021).
Despite the fact that the total healthcare-specific FCA recoveries were down from 2021, all indication is that the DOJ will continue to make healthcare-related FCA matters a top departmental priority. In its press release announcing the 2022 statistics, the DOJ listed certain of those priorities, including pandemic-related fraud, Medicaid fraud, cases related to unnecessary services and/or substandard care, Medicare Advantage fraud, and violations of the Anti-Kickback Statute (AKS).
The DOJ also took the opportunity to remind everyone of their continued focus on individual liability, noting that it “continued its commitment to use the [FCA] to deter and redress fraud by individuals as well as corporations. Such efforts deter future fraud, incentivize changes in both corporate and individual behaviors, ensure that the proper parties are held responsible, and promote the public’s confidence in our justice system.”
The attorneys at Chilivis Grubman represent healthcare providers as well as clients in various other industries, in connection with False Claims Act investigations and litigation. If you need assistance with such a matter, please feel free to contact us today.