4 Private Equity Stakeholder Project
The False Claims Act
The False Claims Act (FCA) is a federal law that establishes
liability for individuals or companies that defraud governmental
programs. It includes liability for collecting money from the
federal government to which the individual or company may
not be entitled, using false statements to retain that money.
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The FCA is commonly used to prosecute health care companies
that defraud Medicaid, Medicare, and related programs by
submitting false claims for a variety of activities. Fraudulent
activities may include providing substandard care, providing
medicallyunnecessaryservices,receivingkick-backsforservices
provided,lingclaimsforservicesnotprovided,andproviding
services by unlicensed or improperly licensed providers.
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Federal FCA actions may be brought by the U.S.
Department of Justice (DOJ) Civil Division. An individual
whistleblowermaybringaquitamaction,linganaction
on behalf of the government.
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Until recently, the DOJ rarely intervened in FCA cases against
privateequityrmsforactionscommittedbytheirportfolio
companies.Instead,private-equity-ownedcompanieshave
typically assumed full liability for settlements related to alleged
fraudulent behavior, regardless of the level of involvement in
operationsbythecompany’sprivateequityowners.
However,thisappearstobechanging.Severalrecent
cases underscore a new willingness by the federal
governmenttopursueprivateequityownersofhealthcare
companies that may be violating the FCA.
Now,theCOVID-19pandemicandthemassivefederal
spending to support health care providers has ushered in a
newcauseforFCAactionagainstprivateequity.
US Department of Justice expected to ramp up FCA
enforcement amid COVID-19 pandemic
TheCOVID-19pandemicmayhaveprofoundimplications
for the way the DOJ litigates FCA cases against private
equityownersofhealthcarecompanies.Inaspeechto
theUSChamberofCommerce’sInstituteforLegalReform
in June 2020, then Principal Deputy Assistant Attorney
GeneralEthanDavisindicatedtheDOJwillholdprivate
equityrmsliablefortheirportfoliocompanies’actions
where applicable, especially related to CARES Act funds.
“Our enforcement efforts may also include, in
appropriate cases, private equity rms that sometimes
invest in companies receiving CARES Act funds. When
a private equity rm invests in a company in a highly-
regulated space like health care or the life sciences, the
rm should be aware of laws and regulations designed
to prevent fraud. Where a private equity rm takes an
active role in illegal conduct by the acquired company,
it can expose itself to False Claims Act liability. A
pre-pandemic example is our recent case against the
private equity rm Riordan, Lewis, and Haden, where we
alleged that the defendants violated the False Claims
Act through their involvement in a kickback scheme
to generate referrals of prescriptions for expensive
treatments, regardless of patient need. Where a private
equity rm knowingly engages in fraud related to the
CARES Act, we will hold it accountable.”
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Thespeechraisesquestionsaboutwhetherprivate
equity-ownedhealthcarecompanieswillbeatincreased
riskforregulatoryactionrelatedtocollectingCOVID-19
stimulusmoney.Privateequityownedcompaniesare
“Whereaprivateequityrm
knowingly engages in fraud
related to the CARES Act, we will
hold it accountable.”
— Principal Deputy Assistant Attorney General Ethan Davis