Publications

The False Claims Act (“FCA”) incentivizes whistleblowers (“relators”) to provide information to the Government that could lead to a recovery of defrauded taxpayer funds, with a share of that recovery going to the whistleblower. But sometimes a relator’s information can lead the Government to pursue claims only on its own behalf, for which there is no private right of action nor means for the relator to share in any recovery.

Whistleblowers who present healthcare data analytics (“data-mining”) in their False Claims Act (“FCA”) complaints can add tremendous value to the Government’s investigation of their claims. And with rapid advancements in technology such as predictive artificial intelligence and biometric data collection, and with tech firms like Apple, Google, Amazon and Comcast joining the healthcare industry in earnest, the value of data-mining to healthcare fraud investigations will only continue to grow.

The federal False Claims Act (“FCA”) and parallel state statutes create a private right of action to qui tam whistleblowers to recover funds that have been defrauded from Government payers. In the healthcare context, these statutes empower individual citizens and private entities to bring suit on behalf of the Government to recover funds defrauded from Medicare, Medicaid, and other public health insurance payers. The Department of Justice and state Attorneys General have successfully leveraged FCA lawsuits brought by whistleblowers as a vehicle to return billions of dollars in defrauded health insurance proceeds to the Government and taxpayers.

The Medicare Part D Prescription Drug Benefit (“Part D”) has dramatically increased the role of private government contractors in the delivery of pharmaceutical drugs to government healthcare program beneficiaries. In order to deliver pharmaceutical drugs to Part D beneficiaries, the federal government typically contracts with managed care organizations known as Prescription Drug Plan Sponsors (“PDPs”), which in turn, contract with “first tier,” “downstream” and other entities such as Pharmacy Benefit Managers (“PBMs”) and pharmacies. The primary functions of PDPs are to share risk with government payors, to serve as intermediaries between the government and other stakeholders in the pharmaceutical supply chain, and to help contain prescription drug costs.