Bass, Berry & Sims attorney Denise Barnes co-authored an article for the Federal Bar Association’s Qui Tam Section examining the use of data in False Claims Act (FCA) cases and other litigation, with a particular focus on these cases within the healthcare industry. Denise co-authored the article with Houston, Texas-based attorney Rachel Rose with additional contributions by Bass, Berry & Sims attorney Gabrielle Degelia. As the authors note, “data compilation, analysis, and review may be used by attorneys on both sides of the aisle to identify potential fraudulent conduct (in-house), bolster whistleblower cases/complaints (whistleblower attorneys/government), and/or defend against allegations of fraudulent and false statements under the FCA or other relevant fraud statutes.”
For in-house counsel, “data—whether from medical billing information or information compiled from customer complaints or testing—can be used to proactively identify issues, perform a root cause analysis (if needed) and remediate issues prior to a potential whistleblower case. In fact, by compiling and analyzing the relevant information, an in-house attorney, compliance professional or outside counsel can replicate the same type of analysis that the government would engage in if the company were under investigation.” The authors added, “the fundamental question is whether the company has set up the appropriate processes and systems to identify, monitor, and analyze data related to key areas where risk of fraud is heightened,” the authors note. Ultimately, in-house counsel can use data to inform compliance programs and other initiatives.
The authors note, however, that “the Government may face substantial exposure post-intervention in effectively proving its case” when utilizing data analytics and review at trial given that courts have differing views on the efficacy and aptness of sampling in the FCA space.
The full article, “The Utilization of Data in False Claims Act Investigations and Litigation,” was published by the FBA’s Qui Tam Section in the Summer 2024 newsletter, Turning Square Corners, and is available online.