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At Boston University School of Law yesterday, the Health Care Fraud and Abuse course did its first deep dive into the False Claims Act, the government’s primary weapon in this field and an extraordinarily versatile tool. Violators face treble damages, and penalties. Moreover, prosecutors can seek exclusion and debarment from the government health insurance programs.
The class read the statute itself. It also reviewed DOJ statistical records showing how much money has been recovered over the years via the False Claims Act (over $40 billion). The trend is clear. The government increasingly relies on whistleblower suits for its investigative leads. These suits now account for a greater amount of recovery than suits initiated by the government itself.
We stressed several key points in our deep dive into the False Claims Act:
- The statute prohibits not only the submission of false claims, but also causing their submission, conspiracy, and retaining overpayments.
- The law does not require “specific intent” to violated the statute but only “reckless disregard” for the law.
- The law contains particular defenses and requirements that can make success in these cases difficult to predict. These include the first to file requirement, public disclosure bar, Rule 9(b) pleading standards.
- The federal FCA and 30 state FCAs inter-relate and law enforcement coordinates on these matters.
Of course, we covered as well the role of whistleblowers and their counsel in identifying these cases, bringing them to the government, and helping the government investigate and prosecute them.
The students asked excellent questions throughout.
Next week: The FCA in action: Theories of liability, First Amendment defenses to “off-label” cases, and the new materiality standard of Escobar.