DOJ Releases FOCUS Questionnaire to Assist in Evaluating Qui Tams Filed by Data Miners

As we previously reported here, the Department of Justice has launched its Fraud Oversight through Careful Use of Statistics (“FOCUS”) initiative. The initiative gives data miners an opportunity to meet with the Civil Fraud Section to “explain what differentiates their approach, how they validate their findings, and why their methodology provides a reliable basis for identifying high-quality, actionable False Claims Act matters.”

DOJ has now released a questionnaire for those interested in participating in the initiative. The questionnaire requests a white paper of no more than 10 pages addressing the proposed analysis and the potential fraud it identifies.

Among other things, the questionnaire asks participants to:

• Identify the type of fraud, federal programs, and geographic scope at issue;
• Describe the data sources, assumptions, and methodology used;
• Explain whether subject-matter experts were consulted;
• Describe how the model’s accuracy was tested and whether external information corroborates the results;
• Connect the data signals to applicable statutes, regulations, or contractual requirements;
• Describe any reasonable or legitimate explanations for the identified signals and any analysis thereof;
• Present the single best example of potential fraud, including why it reflects fraud rather than an administrative overpayment and the estimated single damages to the federal government; and
• Disclose prior qui tam filings, relevant background information and credentials, and financial relationships with the industry being analyzed.

DOJ states that it will follow up to schedule a meeting when it concludes that an analysis “reflects a data signal with a reasonably strong correlation to potential fraud that is not already known to the government.”

The questionnaire gives more concrete form to DOJ’s expectations for data miner relators. Participants should be prepared to demonstrate not merely an anomalous pattern, but a validated methodology, familiarity with the governing program requirements, consideration of alternative explanations, and evidence supporting fraud rather than error.

Government contractors, healthcare providers and life sciences companies should consider these same questions when evaluating their own data—both to identify potential compliance risks and to anticipate how data miners or DOJ may interpret apparent outliers.

A copy of the questionnaire can be found here.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.