George B. Breen, Erica Sibley Bahnsen, and Daniel C. Fundakowski, Members of the Firm in the Health Care & Life Sciences Practice, in the firm’s Washington, DC, office, co-authored an article in Law360, titled “FCA Trends to Watch for Health, Life Sciences Cos.” (Read the full version – subscription required.)

Following is an excerpt (see below to download the full version in PDF format):

This article takes a look at the U.S. Department of Justice's 2021 health care fraud stats, as well as key False Claims Act trends to watch throughout the rest of this year.

False Claim Act Stats

While the number of new False Claims Act actions filed in fiscal year 2021 decreased, government recoveries reached a record high, particularly from the health care and life sciences sectors.

With collections amounting to $5.6 billion, fiscal year 2021 marks the U.S. Department of Justice's largest annual total FCA recovery since fiscal year 2014, and more than twice the $2.3 billion received in fiscal year 2020.

Fiscal year 2021 was also a record-shattering year for the DOJ as it relates to health care fraud enforcement — more than $5 billion, 90% of the total, was obtained from cases pursued against individuals and entities in the health care and life sciences industries, eclipsing the $1.9 billion recovered in fiscal year 2020.

While high recoveries in 2021 are largely due to settlements with prescription opioid manufacturers, including a $2.8 billion resolution with one opioid manufacturer, the continued focus on health care and life sciences companies, by both DOJ and qui tam relators, is telling.

Relator actions and awards reached a decade low in fiscal year 2021. There were 598 new actions brought under the qui tam provisions of the FCA in fiscal year 2021, a decrease from the 675 actions filed in fiscal year 2020, and the lowest number of filings since fiscal year 2010. Of the 598 qui tam cases filed in fiscal year 2021, 388 were health care-related (65%), the lowest number of health care-related qui tam cases filed since fiscal year 2010.

The enforcement statistics suggest increasing provider exposure in declined qui tam cases where relators pursue FCA cases without the DOJ's intervention. The $452 million collected in those cases from the health care and life sciences industries is the largest recovery since fiscal year 2015 and the second largest recovery in reported history.

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