There has been some concern that with the election of pro-business Donald J. Trump, False Claims Act cases might dwindle. A Nov. 28 report from the National Law Review dismisses that likelihood. Nevertheless, the report does see change on the horizon.
Some questions addressed in the report, and our observations:
Why might we expect a change in anti-fraud actions?
Because the President-elect campaigned on the need for diminished regulation and enforcement of federal laws.
Why are False Claims Act cases unlikely to decrease?
Because government benefits from enforcement of the law. Most False Claims Act cases are filed by relators (whistleblowers) to compensate for deceptive actions against the government, and thus against taxpayers.
False Claims Act cases are not just good politics, they are sound budgetary policy, returning $26.80 billion during the Obama years.
The number of qui tam suits should continue to grow, driven by a more sophisticated and aggressive relators’ bar, increasing awareness of the FCA aided by the requirement under the Deficit Reduction Act of 2005 (DRA), new FCA amendments in the Fraud Enforcement and Recovery Act of 2009, and the ACA’s easing of the public disclosure bar’s requirements.
What about repeal of the Affordable Care Act?
There is a strong likelihood that the ACA will either be significantly altered, replaced or repealed. As a consequence, current ACA amendments regarding False Claims Act cases – such as defining who may qualify as a relator – may change. The article suggests that FCA cases will be more affected by future Supreme Court nominees.
The ACA does much more than insure people. It altered the FCA’s public disclosure bar so that more individuals qualify as relators; and it eased the government’s burden of proof under the federal anti-kickback statute (AKS). Both of these reforms may be undone or amended in the months ahead.