A summary of the article “A Review of Key 2018 False Claims Act Recoveries and Developments,” which first appeared in Physicians Practice.
In December, the Department of Justice announced that it recovered more than $2.8 billion in False Claims Act judgments and settlements for fiscal year 2018. The largest settlements involved pharmaceutical companies:
- AmerisourceBergen Corporation, along with several subsidiaries, agreed to pay $625 million to resolve claims that a facility had improperly repackaged oncology supportive injectable drugs into prefilled syringes and improperly distributed these syringes to physicians.
- Actelion Pharmaceuticals agreed to pay $360 million to resolve claims it had improperly used a foundation to pay the copayments of thousands of Medicare beneficiaries taking hypertension drugs, a violation of the Anti-Kickback Statute.
- Pfizer paid $23.8 million to resolve allegations it had used a foundation to pay copayments of Medicare beneficiaries taking various Pfizer medications.
Last year also saw a few policy directives. The Granston Memo identifies seven factors government attorneys should consider when deciding whether to pursue a case:
- when the complaint lacks merit, either because the claims are factually frivolous or the legal theory is defective;
- when the complaint duplicates a pre-existing government investigation and adds no useful information;
- when the complaint threatens to interfere with the agency’s policies or the administration of federal programs;
- when dismissal is “necessary to protect the department’s litigation prerogatives”;
- when necessary to safeguard classified information or national security;
- when the government’s expected costs are likely to exceed any expected gain; and
- when the complaint would “frustrate the government’s efforts to conduct a proper investigation.”
The implications of these policy changes are difficult to predict for 2019. It is certainly possible the department’s decreased reliance on agency guidance documents and increased willingness to dismiss whistleblower complaints will result in fewer recoveries. However, it is also possible these moves will increase the department’s ability to focus and litigate more quickly cases it deems meritorious.
To read the complete article on Physicians Practice, please click here.
