Laura Cordova, a partner in Crowell & Moring's health care and white-collar & regulatory enforcement groups.

Although the U.S. Department of Justice may have shifted its priorities over the past few months, health care companies should expect its prosecution of False Claims Act cases in the space to continue, according to a recent Crowell & Moring report.

The health care portion of Crowell & Moring's annual Litigation Forecast, released last week for 2018, alerts the industry's top lawyers of continued FCA enforcement and predicts additional areas of emphasis on which they should keep an eye.

“The government is looking at drug pricing—which folks across the political spectrum are talking about,” said Laura Cordova, a partner in Crowell & Moring's white collar and regulatory enforcement and health care groups, in the report.

“And cases involving opioids are going to rise to the top of the pile,” added Cordova, former assistant chief in the fraud section of the DOJ's Criminal Division. She most recently oversaw the corporate health care fraud strike force.

Last summer, the DOJ gutted this strike force in the wake of the Trump administration's and new U.S. Attorney General Jeff Sessions' increased focus on violent crime, drugs and illegal immigration. Lawyer openings on the strike force and in other parts of the DOJ's Criminal Division have been exacerbated by a hiring freeze.

While some new staff members have been brought on to handle health care fraud cases, others' responsibilities have shifted to different types of work, such as Controlled Substances Act cases, possibly shifting the DOJ's role in health care-related false claims act and whistleblower, or qui tam, cases, according to the Crowell & Moring report. The agency may be willing to let whistleblowers' counsel take the lead.

“In some cases, DOJ will be willing to step back and let relators' counsel move forward with the cases, so the department can conserve its own resources,” Cordova said.

But stepping back does not mean ignoring, the report said. It said the agency will closely watch cases to ensure that they don't create bad law or bad precedent, and step in where it thinks it is necessary.

In addition, the DOJ may weigh in on cases in which it has not intervened, by exercising its “absolute veto power over FCA settlements [and using] that power to veto settlements between relators and defendants that it thinks are too low,” Cordova said.

The agency may also file statements of interest in such cases, which can have an impact on the court's decision. Overall, “this approach is in keeping with the administration's priorities of reducing the federal workforce while still collecting significant amounts of money through qui tam enforcement of the FCA.”

Finally, in cases where the DOJ does opt to intervene, department leaders indicate that it may move more frequently to dismiss cases it believes lack merit, the report states. In the past, the DOJ has rarely moved to dismiss qui tam cases, though it has always had the power to do so, it said.