DOJ Proposed Rule Increases Penalties Under FCA
Civil monetary penalties (CMPs) for violating the False Claims Act (FCA) are increasing substantially under an interim final rule that the Department of Justice (DOJ) published June 30 (81 Fed. Reg. 42491).
The Federal Civil Penalties Inflation Adjustment Improvement Act of 2015, which was enacted as part of the Bipartisan Budget Act of 2015, mandated inflation-based adjustments to all CMPs. The interim final rule, which is effective August 1, raises per claim penalties for FCA violations from the current per-claim range of $5,500 to $11,000 to a new minimum-maximum range of $10,781 and $21,562. The rule also ups per occurrence penalties for Anti-Kickback Statute violations from $11,000 to $21,563.
DOJ is seeking comments on the interim final rule by August 29. The proposed increases will lead to substantially higher penalty amounts, but because the existing CMP levels often result in penalties that are beyond a practices’ ability to pay, it is not clear that the new penalty levels will result in substantially increased collections. What the new penalty amounts likely do, is to provide the government with increased leverage to force settlements in potential FCA cases.