DOJ Principal Deputy Assistant Attorney General Credits Whistleblowers, Identifies 2024 Priorities

DOJ Principal Deputy Assistant Attorney General Brian Boynton recently spoke at the 2024 Federal Bar Association’s Qui Tam Conference.  Here are a few key takeaways from his remarks, which can be found here.

1. Crediting Whistleblowers. Boynton lauded whistleblowers, calling them “a critical source of [DOJ’s] enforcement efforts,” and he thanked them and their counsel for their efforts, adding that the DOJ “could not have done this without you.”  Whistleblowers should be heartened by such a senior DOJ official noting the important role whistleblowers play in bringing misconduct to light.
2. DOJ’s FCA Enforcement in 2023. Boynton highlighted certain statistics that reflect the DOJ’s efforts enforcing the FCA in 2023, including recovering nearly $2.7 billion. For more information on these 2023 3 enforcement statistics, see our post addressing DOJ Releases False Claims Act Results for 2023.
3. DOJ FCA Enforcement Priorities for 2024. Boynton called out a few areas of focus for the DOJ in 2024.
   • Cybersecurity – Mr. Boynton highlighted the work of the DOJ’s Civil Cyber-Fraud Initiative, which uses the FCA to “bring enforcement actions when government contractors fail to follow federal cybersecurity requirements, putting government data and information systems at risk.” Find out more about cybersecurity and government contract fraud here.
   • Pandemic Fraud – Mr. Boynton mentioned how the DOJ has used the FCA to go after fraud schemes related to the pandemic and the Paycheck Protection Program, under which the government provided loans to eligible small businesses to cover certain costs. Find out more about pandemic-related fraud here.
   • Healthcare Fraud – Healthcare fraud has long been a priority of the DOJ and will continue to be one for the foreseeable future. As Mr. Boynton noted, “since the early 2000s, healthcare has consistently been the largest area of enforcement and recovery under the False Claims Act.”  Find out more about healthcare fraud here.  Within the broad category of healthcare fraud, Mr. Boynton called out certain areas of particular interest for the DOJ in 2024.
     • Kickbacks – Mr. Boynton discussed how the DOJ uses the FCA to enforce the Anti-Kickback Statute and the Stark Law, which are laws that prevent the use of inducements to influence or generate referrals. Find out more about the Anti-Kickback Statute and Stark Law here.
     • Nursing Homes – Mr. Boynton highlighted the DOJ’s use of the FCA to bring enforcement actions against individuals or entities that engage in fraud involving nursing homes. Such fraudulent schemes can involve “medically unnecessary rehabilitation therapy,” “the misuse of antipsychotic medications to chemically restrain residents,” “medically unnecessary lab tests,” and “grossly substandard card.”
     • Medicare Advantage (Part C) – Mr. Boynton discussed the roughly “30.8 million people … enrolled in Medicare Advantage plans” in 2023, and the “more than $450 billion” that the federal government paid to Medicare Advantage plans. He specifically noted that the DOJ “expects to expand its focus on the Medicare Part C Program to include an examination of the role that vendors and providers play in the diagnoses that are submitted to the government.”  Find out more about Medicare Advantage (Part C) and risk-adjustment fraud here.
   • FCA Actions Against Private Equity Firms, Investors – Mr. Boynton emphasized the DOJ’s “commitment to holding accountable third parties that cause the submission of false claims,” specifically calling out private equity firms. As Mr. Boynton noted, under the FCA, “[i]t is no defense that an individual or entity did not sign or transmit the specific claim at issue if their conduct played a significant and foreseeable role in advancing the scheme.”  PE firms and other third parties certainly can come within the FCA’s reach.  Boynton provided a proverbial shot across the bow to unscrupulous PE firms, venture capital firms, and other entities that invest in or acquire companies – especially healthcare companies – that deal with the government:

“[I]nvestors, such as private equity firms or venture capital firms … may influence patient care by providing express direction for how a provider should conduct their business, or more indirectly by providing revenue targets or other indirect benchmarks intended to prioritize reimbursement.  … [I]f an investor knowingly engages in conduct that causes the submission of false claims, they may subject themselves to liability.  Third-party actors are not inherently problematic, and they can play positive roles in the healthcare industry.  But we also know that they can undermine medical judgment, inappropriately influence the doctor/patient relationship, and cause the submission of false claims to federal healthcare programs.  In those instances, the department will not hesitate to pursue them for their roles in defrauding the government.  We have already had a few cases involving private equity firms.  And given the significant role that private equity is increasingly playing in the healthcare field, we anticipate that their impact on healthcare billings will continue to grow as well.”

This will be an important space to watch in the coming year.  Find out more about the FCA and PE firms acquiring or investing in healthcare companies here.

These FCA enforcement priorities for 2024 provide key insights into the DOJ’s areas of focus in the future.  The DOJ, with the help of whistleblowers, will continue to bring enforcement actions against those that defraud the government.  If you have information relating to potential fraud against the government and would like to speak to an experienced member of the Constantine Cannon whistleblower lawyer team, please don’t hesitate to contact us for a free and confidential consultation.

Read More

• Government Contract Fraud
• COVID-19 Fraud
• Healthcare Fraud
• Why Cybersecurity Whistleblowers Should Be Treated as Friends, Not Foes
• Whistleblower FAQs

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