Frances M. Green and Eleanor T. Chung, attorneys in the Employment, Labor & Workforce Management and Health Care & Life Sciences practices, respectively, co-authored an article in the New York Law Journal, titled “New Wine into Old Wineskins: Artificial Intelligence Fraud and Abuse Enforcement.” (Read the full article - subscription required.)
Following is an excerpt:
Artificial intelligence (AI) is poised to redefine and reshape health care, and the U.S. Department of Justice (DOJ) is taking notice. In June, Deputy Attorney General Lisa Monaco convened the fourth session of the DOJ’s Justice AI Initiative, tasked with bringing together experts from academia, science and industry, to examine potential effects of AI on the Department’s mission and to report to the president. This session focused on the civil rights and civil liberties challenges of AI, particularly when algorithms and automated systems are used to make critical decisions in health care, employment, housing, and more. Past meetings have focused on “how malicious actors are using AI to supercharge their criminal schemes.”
In announcing the launch of Justice AI Initiative earlier this year, Monaco said, “every new technology is a double-edged sword, but AI may be the sharpest blade yet.” From election security to U.S. national security to combatting discrimination, the DOJ has its sword at the ready. “Discrimination using AI is still discrimination. Price fixing using AI is still price fixing. Identity theft using AI is still identity theft. You get the picture,” Monaco said. “Our laws will always apply. And—our enforcement will be robust.” Monaco echoed these concerns most recently in Brussels with leaders from the European Parliament. Further, the DOJ is using AI to bring enforcement actions. In fact, “this approach has led to some of the Fraud Section’s largest cases and initiatives.”
We can expect that in the future, a False Claims Act (FCA) violation using AI will still be a False Claims Act violation. That federal statute, enacted in 1863, contains a qui tam provision allowing whistleblowers (relators), as well as the U.S. government, to file cases alleging fraud on the government. The DOJ was a party to 543 False Claims Act settlements and judgments in 2023—the most ever in a single year—with the Department recovering a total of $2.68 billion from FCA cases in fiscal year 2023.
While initially developed to combat Civil War-era fraud, the FCA is now used by the DOJ to combat fraud in the health care industry—with a whopping $1.8 billion recovered in fiscal year 2023 from managed care providers, hospitals, pharmacies, laboratories, long-term acute care facilities, physicians and more. With DOJ enforcement so heavily focused on uncovering health care fraud through the FCA, and also focusing strongly on AI, we expect that in the future those elements will combine in a significant way (The Hill, in fact, published a piece in June in the context of defense contractor fraud, aptly titled, “AI companies, meet the False Claims Act”).
