Author name: Barrett Johnston Martin & Garrison, PLLC

Kickback schemes are among the most prevalent types of fraud in the federal healthcare system. However, compared to other types of fraud, the harm done by such schemes is not always as intuitive.  

Earlier this month, the Department of Justice formally intervened in a significant qui tam action against some of the largest health insurers in America—Aetna, Elevance (previously known as Anthem), and Humana. In a more than 200-page complaint, the Government alleges these insurance companies paid hundreds of millions of dollars in kickbacks to insurance brokers to steer patients into their Medicare Advantage plans. The brokers—companies eHealth, SelectQuote, and GoHealth—are also named defendants in the action (See DOJ press release here).

One unique feature of False Claims Act (FCA) litigation is the fact that the whistleblower files suit in both his or her own name and also on behalf of the United States of America, and then serves the civil complaint on the Justice Department rather than the named defendant. This marrying of private knowledge and government investigative resources has recovered billions of dollars for taxpayers. But the relationship between a private whistleblower and her counsel, on the one hand, and the government, on the other, can sometimes become strained.

When whistleblowers look to file suit for fraud against the government, the oldest and most common tool is the federal False Claims Act (FCA). This statute allows whistleblowers to file suit in the name of the United States and gives the Department of Justice (DOJ) an opportunity to investigate—sometimes for years at a time—while the case remains under seal and before the defendant is aware that the case has been filed. While the federal FCA is a powerful tool in fighting fraud and recovering taxpayer funds, one meaningful limitation is that it only applies to federal funds. The FCA cannot be used to recover funds for state or local government programs, or from private parties.

On March 31, 2025, a federal court in New Jersey entered a $1.64 billion False Claims Act judgment against Janssen Products, a subsidiary of Johnson & Johnson. The whistleblowers—two sales representatives who had worked for the company—alleged that Janssen had illegally marketed two HIV medications (Prezista and Intelence) off-label.

How is a “claim” defined under the False Claims Act (FCA)? The Supreme Court’s recent decision in Wisconsin Bell, Inc. v. U.S. ex rel. Heath has shed new light on a critical aspect of the False Claims Act (FCA)—what exactly constitutes a “claim.”

Any time the United States is paying for a particular item or service, chances are high that someone is devising ways to game the system and violate the False Claims Act (FCA). Certain industries and specialties are more prone to fraud and abuse than others. Our law firm, Barrett Johnston Martin & Garrison, PLLC, stays on top of the latest developments involving health care fraud and False Claims Act cases to represent whistleblowers in cases all over the country.

The Federal False Claims Act (FCA) is the oldest and arguably most developed whistleblower program in the United States. Building off the success of that law, Congress has enacted a number of other targeted whistleblower programs over the years to deal with specific industries and particular types of fraud. Examples include the SEC, IRS, and CFTC whistleblower programs, as well as a host of state-level statutes modeled off of the federal FCA.

Can one be found guilty of committing health care fraud if they didn’t intend to do so? The landscape of proving intent in kickback-based false claims act cases is murky and developing. As national leaders in health care fraud enforcement, our law firm, Barrett Johnston Martin & Garrison, PLLC, stays on top of the latest developments involving health care fraud and False Claims Act cases to represent whistleblowers in cases all over the country.