Recently, the United States Department of Justice (DOJ) issued its annual report regarding False Claims Act (FCA) recoveries for FY 2020 (which ended September 30, 2020). At the same time, the DOJ announced its 2021 priorities, which gives insight into what we can expect in the coming months.
FY 2020 FCA Recoveries
For FY 2020, the DOJ recovered a total of $2.2 billion through False Claims Act cases. While it is a lower recovery amount when compared to prior years, health care fraud still represents most of the FCA recoveries made by the DOJ. Last year, health care FCA cases involved myriad actors, including pharmaceutical companies (including opioid manufacturers), healthcare providers, and electronic health record (EHR) companies. While cases involving COVID-19 did not account for much of the total recoveries made in 2020, we can expect that in FY 2021, it will.
It is important to note that while the recovery amount is the lowest since 2008, it does not mean the DOJ is not interested in healthcare fraud. The 2020 statistics and recovery amount do not include several high-dollar opioid settlements that closed at the very beginning of FY 2021.
EHR
Last year, the DOJ reached a $145 million settlement with Practice Fusion, an EHR developer that allegedly accepted payments from drug manufacturers to design its EHR software to influence physician prescription patterns.
COVID-19 Cases
While most COVID-related fraud has been criminal matters involving the Paycheck Protection Program, Economic Injury Disaster Loans, consumer protection fraud, as well as civil enforcement actions related to COVID scams surrounding PPE or fake treatments/vaccines for COVID, it has been suggested by the DOJ that FCA cases were in the works and we may see those come to fruition in FY 2021.
Focus on Medicare and the Elderly
DOJ also resolved several FCA cases in the skilled nursing area, for a total of roughly $50 million and spent substantial resources around telemedicine, announcing several national “takedowns” of telemedicine networks that facilitated the prescribing durable medical equipment and expensive/compound drugs.
The DOJ also continued to file FCA cases relating to Medicare Part C risk adjustment factors.
Interestingly, despite the COVID-19 pandemic, FCA filings increased in 2020, with most of the increase coming from cases initiated by the DOJ.
Looking Forward
As mentioned above, the last quarter of 2020 (the first quarter of FY 2021) saw several multibillion-dollar opioid settlements, which will boost the total amount of recoveries made in FY 2021. The number of new filings for FCA matters is also pretty significant, which will likely lead to more recoveries made this year.
DOJ has indicated that its focus will be on COVID-19 related funding and fraud, the supply chain for opioids, Medicare Part C managed care, cybersecurity, EHR, and elder care. It is likely that, with the expansion of telemedicine due to the COVID-19 pandemic, telemedicine will also be a clear focus for the DOJ in this year – and possibly years to come.