The False Claims Act has long been considered one of the Department of Justice’s (“DOJ”) most powerful tools for preventing wrongdoing in the healthcare industry. However, the DOJ’s Antitrust Division has been actively investigating anti-competitive behavior in the oncology market and is using federal antitrust laws as its enforcement hook.
The DOJ recently announced that Dr. William Harwin, founder and former President of Florida Cancer Specialists & Research Institute, LLC (“FCS”), was indicted for conspiring to allocate certain oncology treatments for patients in Southwest Florida. According to the indictment, from 1999 through 2016, Dr. Harwin and his co-conspirators entered into an agreement to allocate medical oncology treatments, like chemotherapy, to FCS and radiation oncology treatments to a competing oncology group. Dr. Harwin faces up to 10 years in prison and a $1 million fine if convicted.
The indictment is the result of an ongoing investigation into market allocation and other anticompetitive conduct in the oncology industry. FCS previously entered into a deferred prosecution agreement with the DOJ whereby it agreed to pay the statutory maximum penalty of $100 million. Dr. Harwin is the first individual charged pursuant to this investigation, but the indictment also referenced other unnamed individual co-conspirators.
Assistant Attorney General Makan Delrahim announced that the charges demonstrate the DOJ’s Antitrust Division’s commitment to “holding culpable executives accountable for their crimes,” and that “the Antitrust Division will continue to work to protect competition and integrity in the healthcare industry.” Michael F. McPherson, Special Agent in Charge of the FBI Tampa Field Office also emphasized that the “FBI will persist in exposing unscrupulous medical providers who deny the public access to a competitive healthcare marketplace.”
Historically, antitrust cases in the healthcare industry have been rare. Whether this case is an aberration in enforcement trends or portends a shift in enforcement priorities for the DOJ’s Antitrust Division remains to be seen. However, federal antitrust laws are another arrow in the DOJ’s enforcement quiver. It behooves every health care provider to be aware of antitrust issues that can arise from collaborative agreements with competitors, particularly when the COVID-19 crisis continues to put pressure on the healthcare industry.
The attorneys at Chilivis Grubman have extensive experience working with healthcare providers to defend against DOJ enforcement actions. Contact us today.