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In the choppy waters of FCA recoveries, whistleblowers still steer the ship


Last week, the Department of Justice (DOJ) released its annual report on False Claims Act (FCA) recoveries in fiscal year 2015. Considering last year's historic $5.7 billion total, it was a little surprising--at least initially--to see FCA recoveries had dropped 40 percent.

Of course, the healthcare industry saw a much milder 18 percent decline, dropping from $2.4 billion in 2014 to $1.96 billion in 2015, but it was a decline nonetheless.

So what's going on? Is the government getting lazy in its FCA enforcement? Did one epic year get to its head and now it's sitting back on its haunches, like an athlete who slumps after a $200 million contract?

There are a couple explanations. One is that, historically, FCA recoveries ebb and flow. In fact, Mintz Levin has has a few graphics that help visualize the peaks and valleys over the last 20 years.

Another exaplnation for the overall decline in FCA recoveries is the unique circumstances of FY 2014. A major chunk of the government's $5.7 billion came from the housing and mortgage industry, which pitched in $3.1 billion thanks to a handful of huge settlements in the wake of the mortgage crisis.  

The DOJ had its own explanation:

"These recoveries restore valuable assets to federally funded programs such as Medicare, Medicaid and TRICARE--the healthcare program for the military. But just as important, the department's vigorous pursuit of healthcare fraud prevents billions more in losses by deterring others who might otherwise try to cheat the system for their own gain."

From the sound of that quote, the DOJ pictures a bunch of people huddled in a dark, smoky back room concocting an elaborate fraud scheme when, suddenly, a press release freezes them in their tracks.

Shut it down, guys. Just look at this recovery rate. Let's volunteer at the soup kitchen instead.

There's no doubt the government has put more resources toward detecting and prosecuting healthcare fraud, particularly with the Health Care Fraud Prevention and Enforcement Action Team and Medicare Fraud Strike Force units. But, as any U.S. Attorney or special investigative unit director will tell you, the element that makes it so difficult to investigate--and prevent--fraud is its constantly evolving nature.