Today, Joyce Branda, the Deputy Assistant Attorney General for the Commercial Litigation Branch of the Department of Justice’s Civil Division, gave the keynote address at the AHLA Fraud and Compliance Forum.  Branda, who has been with the DOJ for more than 25 years (many of those focused on False Claims Act issues) and now oversees the section of justice that enforces and litigates the FCA, discussed the rise of the FCA in the healthcare context and the DOJ’s priorities. 

As Branda noted, in 1987 of the roughly 300 FCA actions filed under the Act’s qui tam provisions, only 3 dealt with allegations of healthcare fraud.  She contrasted that with the 1,000+ FCA qui tam actions filed last year, more than 300 of which involved allegations of healthcare fraud. 

Branda noted that this rise in qui tam actions, coupled with the Act’s requirement that the DOJ thoroughly investigate a relator’s allegations, meant that qui tam actions were necessarily driving the Department’s enforcement priorities. While she admitted there were potential downsides to this, she noted that highly placed relators have brought fraud to the attention of the government that could only be understood and brought to light by those very insiders.  As Branda admitted, these qui tams have brought an incredible benefit to relators, and their counsel, that are successful, with the government paying more than $2.5 billion to relators under the FCA qui tam provisions in the past six years alone. 

While Branda didn’t have statistics on the number of cases taken to trial, she noted that there has been a distinct uptick in the number of FCA cases being tried.  She attributed this to a number of things, including the increasing number of meritorious cases filed, the pressure from courts on the United States to make earlier intervention decisions and the fact that relators are increasingly willing to litigate cases on their own.

Branda also discussed DOJ enforcement priorities.  First and foremost is the renewed focus on individual culpability.  She stated that the renewed focus on individual liability outlined in the Yates Memo wasn’t limited to just criminal wrongdoing.  Indeed, Branda said that the civil division has refocused on examining potential individual liability in FCA and healthcare fraud cases. 

Outside of a renewed focus on individual liability, Branda touched on several specific areas of DOJ and OIG focus.  None of these should be new to people who follow the Department’s priorities, or the recent trends in FCA settlements.  They include:

  • Hospice care, where the government spent nearly $15 billion on services last year;
  • Stark law violations and enforcing the intent of Stark to ensure that physicians are making referrals in a patient’s best interest as opposed to for financial benefit; and
  • Skilled nursing facilities, where the DOJ is focused on ensuring that therapy provided to residents is both medically necessary and of benefit to the patient. 

Finally, Branda highlighted the DOJ and OIG’s continuing use of data, stating that the agencies’ ability to use data in an investigations and prosecutions has only increased.