False Claims Act (FCA) enforcement has long been a cornerstone focus of the federal government. It appears, perhaps counter-intuitively, that is not likely to change under the new presidential administration.
First, FCA enforcement has enjoyed broad, bipartisan support for over thirty years. Both parties have vested interests in combating Medicare fraud, eliminating government waste, and saving American taxpayers’ money. In that regard, FCA enforcement has been consistently successful from a dollars and cents perspective under both Republican and Democratic administrations.
While annual FCA recoveries have been highest under the Obama administration (averaging $3.9 billion compared to $1.8 billion during George W. Bush’s presidency), there has been a consistent upward trend. The career attorneys at the Department of Justice are well aware of this track record. Doubtlessly, they will ensure that their incoming, political-appointee supervisors are as well.
Second, Attorney General nominee Jeff Sessions has indicated that he will keep FCA enforcement as a DOJ priority. A former U.S. Attorney for Alabama who enjoys a close relationship with FCA maven Sen. Chuck Grassley, Sessions said in his confirmation hearing opening statement before the Senate Judiciary Committee that he would make it a “high priority… to root out and prosecute fraud in federal programs and to recover any monies lost due to fraud or false claims.” He went on to testify that FCA cases are “a valid and effective method of rooting out fraud and abuse” which have “saved the country a lot of money” and “probably ha[ve] caused companies to be more cautious.”
While Sessions appears set to follow the current course of FCA enforcement, some changes of emphasis are inevitable. For example, DOJ attorneys in Washington and throughout the country might face greater pressure to investigate FCA claims, make an initial intervention decision, and thereby allow a sealed FCA complaint to become public, on an accelerated time line. Both at his confirmation hearing and in the past Sessions has evinced concerns about the length of time for which FCA complaints may remain sealed; he even confirmed that he would seek to provide Congress with “regular timely updates” on “statistics as to how many [FCA cases] are under seal and average length of seal.” It is also possible that a more business-friendly Republican administration will look upon purely off-label promotion FCA cases with a more jaundiced eye.
Third, at least in regards to increased drug price, Donald Trump has demonstrated his potential willingness to make health care fraud issues a priority. At his recent press conference, he inveighed against pharma companies, claiming that they were “getting away with murder.” Such comments do not suggest that the new administration’s DOJ will be skittish about exploring potential fraud as a reason for increased health care costs.
In short, the new administration certainly heralds change on many fronts for many issues. For a president seeking a “better deal” for the American taxpayers, however, it does not promise much change on the FCA front.