The Successes of the Modern False Claims Act

Posted On: October 7, 2007 by Finch McCranie, LLP

Part 5: The Successes of the Modern False Claims Act--and How They Have Prompted a Wave of State False Claims Acts With Qui Tam Whistleblower Provisions

This is Part 5 of 6 by whistleblower lawyer blog of a detailed article for those wishing to know more about the principal qui tam whistleblower statutes, the federal False Claims Act and the new state False Claims Acts. It is part of a recently published article by whistleblower lawyer blog author Michael A. Sullivan, and this article is reprinted with the permission of the Georgia Bar Journal.

This Part 5 discusses the dramatic successes of the federal False Claims Act since its 1986 Amendments in recovering taxpayers' money wrongfully obtained by fraud and false claims.

IV. The Trend of Recent Recoveries Under the False Claims Act

Over the past two decades since the modern False Claims Act was established through the 1986 Amendments, the federal government’s recoveries of dollars have grown astronomically, especially in health care cases. The Department of Justice statistics [52] tell the story:

In 1987, the government’s recoveries in qui tam cases totaled zero, presumably because the 1986 Amendments had just taken effect; and total recoveries under the False Claims Act were just $86 million. The following year, qui tam and other False Claims Act settlements and judgments began a steady climb upward, exceeding $200 million by 1989, and $300 million by 1991. By 1994, the government’s recoveries broke the $1 billion mark for the first time, with $380 million of that amount attributable to qui tam case recoveries alone.

In 2000, the government recovered more than $1.5 billion, of which $1.2 billion was derived from qui tam actions. In 2001, the government recovered more than $1.7 billion, with almost $1.2 billion of that amount from qui tam cases. With the exception of 2004, in each year since 2000 the government has recovered more than a billion dollars per year under the False Claims Act, and qui tam actions were responsible for the lion’s share of those recoveries. For example, in 2003, government recoveries exceeded $2.2 billion, of which $1.4 billion came from qui tam cases. Similarly, in 2005, of the government’s total recovery of $1.4 billion, $1.1 billion of that amount came from qui tam cases.

In 2006, the Justice Department recovered a record of more than $3.1 billion in settlements and judgments for fraud and false claims. Of this record $3.1 billion in recoveries, 72% came from the health care field; 20% from defense; and 8% from other sources. Health care alone accounted for $2.2 billion in settlements and judgments, which included a $920 million settlement with Tenet Healthcare Corporation, the country’s second-largest hospital chain. Defense procurement fraud amounted to $609 million in recoveries, which included a $565 million settlement with the Boeing Company.

It is interesting that, while defense procurement fraud both inspired the Act and was the largest source of recoveries at the time of the 1986 Amendments, health care cases now lead in recoveries, as health care costs have grown as a percentage of the federal budget. By industry, in 1987 the defense industry was the largest source of cases under the False Claims Act. [53] The health care industry accounted for only 12% of cases under the False Claims Act in 1987; that percentage grew to 54% by 1997. [54]

Many health care fraud cases have addressed over-billing or up-coding, fraudulent cost reporting, billing for services not provided, and failure to furnish the required “quality of care.” [55] The breakdown of the Department of Justice statistics shows that government recoveries in the health care field have grown from less than $2 million in 1988 to more than $1.8 billion in 2003. Although the amounts recovered rise and fall each year, from 2001–2006 government recoveries from the health care field exceeded $1 billion in five out of six years.

The trend has continued in 2007, as the Office of Inspector General of the Department of Health and Human Services recently announced that it expects $2.9 billion in recoveries for Medicare, Medicaid, and other federal health and human services programs for the first half of fiscal year 2007. [56]

In short, the health care industry now consistently accounts for the vast majority of settlements and judgments obtained by the federal government for fraud and false claims.


Footnotes:

52 See Department of Justice statistics reprinted at http://www.taf.org/statistics.htm.

53 SYLVIA, supra note 12, § 2:13, at 63.

54 Id. § 2:14, at 64.

55. Id. § 2:14, at 65.

56. Department of Health and Human Services Office of Inspector General, Semiannual Report to Congress (October 1, 2006-March 31, 2007), at i, available at http://oig.hhs.gov/publications/docs/semiannual/2007/SemiannualFirstHalf07.pdf.

57 Recent significant recoveries under the False Claims Act in the health care industry include the following:

a. Tenet Healthcare Corporation: ($900 million settlement of several lawsuits in 2006 from allegedly improper billing practices), http://www.usdoj.gov/usao/cac/news/pr2006/088.html.

b. Serono, S.A.: ($704 million settlement of several lawsuits in 2005 from allegedly illegal schemes to promote, market, and sell Serostim, an AIDS drug), http://www.usdoj.gov/opa/pr/2005/October/05_civ_545.html.

c. Bristol-Meyers Squibb ($515 million settlement in September 2007 to resolve allegations of illegal drug marketing and pricing),
http://www.usdoj.gov/opa/pr/2007/September/07_civ_782.html.

d. Schering-Plough Corporation: ($435 million settlement in August 2006, arising from alleged illegal sales in marketing programs for its drugs, with $91 million to settle civil liabilities to the states for losses to state Medicaid programs), http://www.usdoj.gov/usao/ma/Press%20Office%20-%20Press%20Release%20Files/Schering-Plough/press%20release.pdf

e. Saint Barnabas Corporation: ($265 million settlement in 2006 of two lawsuits against the largest healthcare system in New Jersey, Saint Barnabas Corporation, to settle allegations that it defrauded the federal Medicare program), http://www.usdoj.gov/usao/nj/press/files/pdffiles/stba0615rel.pdf.

f. King Pharmaceuticals, Inc.: ($124 million settlement in 2005 of various lawsuits for alleged overcharges in Medicaid program to various federal and state government entities for its drug products),