In 2015, the Justice Department (DOJ) continued to give high priority to False Claims Act (FCA) investigations, bringing in nearly $3.6 billion in settlements and judgments. More than 630 qui tam suits were filed. DOJ's leadership made clear that in 2016 FCA investigations will increasingly focus on individual as well as organizational defendants and pursue potential criminal as well as civil liability. Congress mandated a 40% increase in penalties under the FCA this year and indexed penalty amounts to inflation going forward.
The Supreme Court resolved an important FCA statute of limitations issue in 2015, will hear argument in the spring of 2016 in a case questioning whether implied certification liability is permitted, and has several other FCA certiorari petitions pending. The lower courts continue to disagree over the meaning of many fundamental provisions in the FCA. In healthcare cases, claims resting on alleged unnecessary care, improper coding of procedures and medications, and Stark Law and Anti-Kickback Statute violations were particularly frequent. The government's emphasis on data analytics will likely keep those kinds of claims coming in 2016. Procurement cases featured various kinds of record-keeping failures, such as alleged miscoding of labor categories and mishandling of government property; alleged violations of “best price” guarantees; and alleged failures to comply with “Buy American” requirements.
WilmerHale's comprehensive review of FCA developments surveys significant federal decisions, settlements, and recently filed or unsealed complaints; legislative and regulatory changes at both the federal and state levels; changes in investigation and litigation strategy by whistleblowers, state attorneys general, and federal prosecutors; and proposals for reform of the FCA. By looking back over 2015, the report also provides an important guide to changes on the horizon for 2016.