The Justice Department announced that it secured over $3.5 billion in settlements and judgments from civil cases involving fraud against the government in the fiscal year ending September 30, 2015 (“FY2015”). This is the fourth year in a row that the Justice Department has recovered more than $3.5 billion in cases under the False Claims Act (“FCA”) and brings the total recoveries under the FCA to $26.4 billion since January 2009.

The FCA is a federal law prohibiting individuals and institutions from knowingly submitting or causing to be submitted, false or fraudulent claims to the federal government. Most FCA cases are filed under the FCA’s whistleblower, or qui tam, provisions, which allow private citizens to file lawsuits on behalf of the federal government. If they prevail, they can receive up to 30% of the recovery. Qui tam actions often are filed by current or former employees of the companies they accuse of making false claims. Of the more than $3.5 billion recovered by the Justice Department in FY2015, $2.8 billion was related to qui tam lawsuits. During that period, $597 million was paid to individuals who brought qui tam claims.

Health care fraud accounts for the largest percentage of the FCA recoveries, totaling $1.9 million of the FY2015 FCA recoveries. The Justice Department reported it has recovered nearly $16.5 billion in health care fraud from January 2009 through the end of FY2015. The Justice Department attributes this high rate of recovery in the health care industry in part to the Health Care Fraud Prevention and Enforcement Action Team (“HEAT”), which is an interagency task force coordinating the efforts of the Justice Department and the Department of Health and Human Services.

The FCA recoveries in the health care industry stem from a variety of circumstances, including unnecessary or inadequate care, kickbacks paid to health care providers to induce the use of certain goods and services, and overcharging for goods and services paid for by Medicare, Medicaid and other federal health care programs. Hospitals were involved in nearly $330 million in FCA settlements and judgments in FY2015. The Justice Department also noted that the pharmaceutical industry accounted for $96 million in settlements and judgments in FY2015.

Outside the health care industry, the Justice Department reported that in FY2015, government contracts and federal procurement accounted for $1.1 billion in fraud settlements and judgments in FY2015. The Justice Department also noted that it recovered $365 million in housing and mortgage fraud during that period.

In addition to placing an emphasis on FCA cases, in 2015 the DOJ also announced it hired a corporate compliance program expert for a new role in assisting federal prosecutors evaluating whether or not to prosecute companies engaged in fraudulent activity. The compliance expert will help prosecutors evaluate the effectiveness of the company’s existing compliance program and any remedial action taken in response to reports of fraudulent or criminal activity.

It is clear that FCA claims remain a high priority for the Justice Department. In addition, for those companies involved in the health care industry, it is expected that HEAT will continue to aggressively pursue claims of health care fraud. In this environment of multi-million dollar recoveries by both the federal government and individuals filing qui tam actions, one of the most important steps a company can take is to work with counsel to develop and implement a robust compliance program, and to continually monitor the effectiveness of the program and any remedial actions taken in response to complaints.

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Photo of Michael R. Bertoncini Michael R. Bertoncini

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, employment law counseling and litigation, and data privacy and security law.

In labor relations matters…

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, employment law counseling and litigation, and data privacy and security law.

In labor relations matters, he regularly counsels clients on the practice of positive employee relations, negotiates collective bargaining agreements on behalf of organized clients, represents clients in labor arbitrations and National Labor Relations Board proceedings, and counsels clients with respect to rights and obligations under collective bargaining agreements and applicable labor and employment laws. He also has extensive experience in advising organizations responding to corporate campaigns and negotiating neutrality agreements.

Mr. Bertoncini’s privacy and data security practice focuses on advising clients on complying with HIPAA and other state and federal privacy and data security laws. He regularly reviews and develops policies and procedures, written information security plans and integrated compliance programs to assist clients in meeting their obligations under privacy and data security laws. Mr. Bertoncini has represented clients in investigations of alleged data breaches and advises them on their reporting obligations in the event of a data breach. He also conducts workplace training programs on HIPAA compliance and related privacy and data security topics.

Before joining Jackson Lewis, Mr. Bertoncini was Deputy General Counsel for a hospital system that is the largest fully integrated community care organization in New England. He was responsible for all of the system’s labor and employment law matters, and was involved in its acquisition by a private equity firm as well as its growth from six to ten hospitals in a twelve-month period. His three years as in-house counsel for this large health care system give Mr. Bertoncini a keen understanding of the impact of labor and employment law issues on clients’ business operations.

In addition to his labor relations and privacy experience, Mr. Bertoncini has extensive experience in conducting internal investigations and counseling clients on whistleblower and retaliation matters, as well as negotiating executive agreements, both employment and separation agreements. Mr. Bertoncini also represents clients in the litigation of employment matters. His litigation experience includes matters before federal and state courts and administrative agencies. He has appeared before United States Courts of Appeals and District Courts, Massachusetts and New York state courts, the Equal Employment Opportunity Commission, and the Massachusetts Commission Against Discrimination.

Mr. Bertoncini is a frequent speaker and trainer on labor and employment law topics for various organizations including Massachusetts Continuing Legal Education, Council on Education in Management, Lorman Education Services, the Boston Bar Association, and several chambers of commerce.

While attending Boston College, he received the John A. McCarthy, SJ Award for the most distinguished Scholar of the College thesis.