Was 2022's $2 Billion in Fraud Recoveries a Drop in the Bucket?

During Fiscal year 2022, False Claims Act whistleblowers and their attorneys, like Frohsin Barger & Walthall, helped United States taxpayers recover more than $2 billion in alleged fraud through 351 settlements and judgments, “the second-highest number of settlements and judgments in a single year,” according to the Department of Justice, Civil Frauds Division.  More than three quarters of the recoveries were for allegations of healthcare fraud.

“While the efforts of the DoJ and private attorneys general and the bravery of whistleblowers should be applauded, the real news here is that fraud is rampant in our government programs, particularly in the healthcare industry,” observed Frohsin Barger attorney Jim Barger.  “Despite all of our efforts, the volume of fraud keeps going up, and the medical industrial complex continues to prey upon our most vulnerable citizens: the elderly, the poor, and our wounded veterans.”

The numbers reported by the DoJ for 2022 do not even include losses sustained by the various states.   The Department of Justice and whistleblowers under the federal False Claims Act only are empowered to recover for federal dollars, while state attorneys general are limited to the tools particular to their state codes.  Some states have their own False Claims Acts that closely resemble or even mirror the federal False Claims Act, while other states must rely on general fraud statutes or even common law jurisprudence to fight fraud in state-funded programs. But without incentives or mechanisms for whistleblowers to report fraud and initiate lawsuits, it is highly unlikely that such fraud will even be detected, much less prosecuted.

“The large number of settlements and judgments this past year demonstrates that the False Claims Act remains one of the most important tools for ensuring that public funds are spent properly and advance the public interest,” said Principal Deputy Assistant Attorney General Boynton in the DoJ press release.  While the DoJ often trumpets the mantra that the False Claims Act is the government’s primary weapon against fraud, it begs the question why some many state law-makers have deprived their constituents of the most proven tool to protect tax payer dollars.

Even more troubling, however, is that powerful interests would love to see the False Claims Act dismantled.  In a recent ruling, Justice Thomas indicated in dicta in a dissent in U.S. ex. rel. Polansky v. Executive Health Resources that he is willing to have the Court reconsider the constitutionality of the False Claims Act — a law that has been in place since the Civil War, was signed by President Abraham Lincoln, traces its origins to jurisprudence going back hundreds of years earlier to British common law, and has repeatedly been validated as constitutional by the U.S. Supreme Court since the late nineteenth century.  Why would Justice Thomas, a self-styled “originalist” who regularly plays amateur historian in his opinions, be interested in questioning the constitutionality of a law whose roots are so well-grounded in legal history and stands as the most important tool for keeping corporate profiteers in check?

The False Claims Act imposes treble damages and penalties on corporations and individuals who knowingly and falsely claim money from the United States, and the vast majority of actions brought under the False Claims Act are filed by whistleblowers, insiders with unique knowledge of the fraudulent schemes, and attorneys and law firms who are well-versed in the intricacies of the statute and its application and the operations and policies of the Department of Justice in investigating fraud.  Frohsin Barger & Walthall have almost singularly dedicated to False Claims Act whistleblower litigation for going on twenty years and are among the most published and quoted attorneys in the practice area.  Our firm literally wrote the book on healthcare fraud that other attorneys, law students, and compliance officers turn to for guidance.

If you have direct and independent knowledge of corporate schemes to make false claims  to the government, our attorneys would like to hear from you.