The False Claims Act as Fail-safe in a Deregulated Environment
| Publication year | 2019 |
The False Claims Act as Fail-Safe in a Deregulated Environment
Renée Brooker
Eva Gunasekera
The Department of Justice has shined a large spotlight on the opioid crisis. Earlier this year, Attorney General Jeff Sessions told a Senate subcommittee that the Justice Department is "going after drug companies, doctors and pharmacists" who are fueling the nation's opioid epidemic.1 As the opioid epidemic continues to devastate communities and families across the nation, the Justice Department is responding with innovative and appropriately aggressive approaches and using the full panoply of its enforcement tools. These have included increased staffing, data analytics, new initiatives—sophisticated measures and tried-and-true policing efforts.2
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But, let's face it—the Justice Department cannot battle this epidemic alone. As the Attorney General observed, "With one American dying of a drug overdose every nine minutes, we need all hands on deck."3 The Department has much on its plate right now from terrorism to corporate fraud to cyber security.
Exploiters of the drug crisis extend beyond pharmaceutical companies and their executives who pay doctors to prescribe opioids for unintended uses. There are others who bear responsibility for the crisis—individuals and companies that have criminal and civil culpability. These include doctors who put patients at risk because they are paid handsomely by the pharmaceutical industry to prescribe opioids; laboratories churning out test results that put maximizing billing ahead of patient safety; rehabilitation clinics that admit and discharge addicted patients through a revolving door rather than providing effective treatment options; drug insurance plans that cover opioids with no prior permission required; and pharmacy benefits managers—the middlemen—that make access to opioids easier than less addictive alternative remedies. Holding these providers and companies accountable requires that knowledgeable insiders come forward. There are anti-retaliation laws to protect whistleblowers who provide tips and helpful information to the government.
This country needs ordinary Americans to step forward and step up—individuals who will "do the right thing." Effective enforcement of our nation's laws to solve the opioid crisis is dependent upon help from individuals with firsthand knowledge of the harmful practices that have brought us to the regrettable circumstances we find ourselves in today. The False Claims Act—the Justice Department's primary civil enforcement tool—provides financial rewards to whistleblowers. It is a legitimate enforcement tool to augment the efforts of the Justice Department. Insiders with personal knowledge of abusive practices that put patients at risk and waste taxpayer dollars can make an enormous difference.
Historically, insiders have been responsible for exposing some of this country's most harmful health care practices—prompting legislative reforms, increasing funding for preventative and enforcement initiatives, and leading to improvements in compliance practices of the health care industry. With the help of insiders, attention and publicity to this issue could prompt the following additional actions and much more:
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• Legislative efforts...
o Increasing the funding for preventative and enforcement efforts launched by the Department of Justice, executive branch agencies, the states and municipalities.
o Increase the funding for treatment options such as drug rehabilitation and detoxification services, including for individuals without insurance coverage.
o Revisiting compliance measures for financial institutions to ensure they are not recklessly or negligently funding and sustaining the opioid epidemic.
o Limiting the marketing and availability of opioids and other addictive drugs through strengthened oversight and
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