Last year was not a great year for False Claims Act (FCA) recoveries by the Department of Justice (DOJ) overall, and in health care particularly: $2.207 billion in total FCA recoveries, the lowest since 2008, and, of that amount, $1.761 billion from health care matters, the lowest since 2009. Still, comprising almost 80% of all FCA recoveries, the health care industry continues to be a perennial focus for the DOJ in both criminal and civil enforcement.

DOJ's FCA statistics have some additional lessons, especially with regard to health care cases. First, along with whistleblower "qui tam" cases," DOJ continues to bring more "direct file" health care cases. Last year, DOJ brought 93 such cases, the 4th best year since 1987, after the FCA was amended in 1986. Whistleblowers filed 371 new health care-related qui tam matters in 2022, the lowest since 2009. In contrast, whistleblower recoveries in health care qui tams were up substantially.

In addition, 2022 was the best year ever for whistleblowers in health care cases where DOJ did not intervene and whistleblower counsel pursued such cases anyway (sometimes referred to as "declined" matters). In these cases, whistleblowers recovered $1.013 billion, compared to $641 million in recoveries where DOJ intervened. Again, that was the best year ever for health care declined cases. And it showed in the payments whistleblowers received for their success, i.e., the "relator's share:" $295 million, also the best year ever. The lesson...

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