In an address at the Federal Bar Association’s Qui Tam Conference, Acting Assistant Attorney General Brian Boynton discussed the DOJ Civil Division’s current False Claims Act (FCA) enforcement priorities. Although not the full universe of cases the that the DOJ will pursue, Boynton highlighted 6 enforcement areas:
- Pandemic Related Fraud – As the COVID-19 pandemic continues to affect the lives of virtually all Americans, Boynton emphasized that the FCA will play a significant role in how the government responds to the consequences of the pandemic. Through various stimulus packages, Congress has provided direct financial assistance to individuals and businesses. Although the vast majority of the financial assistance has gone to eligible individuals, the programs remain susceptible to fraud. The DOJ has and will continue to crack down on schemes such as false representations regarding eligibility for assistance, misuse of program funds, and false certifications regarding loan forgiveness.
- Opioids – The pandemic has exacerbated the long-standing crisis of opioid abuse. In December 2020, the CDC reported over 81,000 drug overdose deaths per year. The DOJ remains committed to bringing both civil and criminal enforcement actions against those who are fueling the crisis, including pharmaceutical companies that market opioids with false and misleading statements, those who pay kickbacks to increase prescriptions, or providers with a history of overprescribing. The recent $300 million settlement by Indivior and the $1.4 billion settlement by Reckitt Benckiser to resolve FCA allegations related to the marketing and sale of Suboxone are examples of this commitment.
- Fraud Targeting Seniors – The DOJ is committed to preventing the abuse and exploitation of senior citizens. In particular, the FCA remains a potent tool to combat schemes that provide poor or unnecessary health care to seniors. Recently, the DOJ used the FCA to resolve cases where skilled nursing facilities and rehabilitation contractors knowingly provided or billed for medically unnecessary rehabilitation therapy services.
- Electronic Health Records – As providers increasingly transition to electronic medical records, the transition has introduced new opportunities for fraud. The DOJ has successfully resolved cases involving the misuse of electronic medical record software. For example, the DOJ recently announced a $18.25 million settlement with Athenahealth Inc. where it was alleged that Athenahealth paid kickbacks – including Masters and Kentucky Derby tickets – to generate sales of its products. The DOJ is also focused on vendors that misrepresent their software’s capabilities, which resulted in providers claiming incentive payments for using compliant software.
- Telehealth – COVID-19 related shelter-in-place orders or quarantines have rapidly expanded the use of telehealth. The increased use of telehealth services has also increased the abuse of such services. The DOJ announced that a woman plead guilty to criminal charges and paid $20.3 million to resolve civil allegations that she established dozens of medical equipment companies in the names of straw owners. The companies then submitted medical equipment claims to Medicare, asserting the claims resulted from telehealth visits when in reality no telehealth service was provided and doctors were simply paid kickbacks to approve the claim.
- Cybersecurity – Electronic health records and telehealth highlight the importance of cybersecurity. Increased reliance on technology means increased cybersecurity measures. To the extent the government pays for systems or services that purport to comply with required security standards and fail to do so, FCA liability may arise.
In addition to the types of cases the DOJ will focus on, Boynton highlighted how the DOJ is finding cases to prosecute. While whistleblowers still remain a valuable source of leads to root out fraud and abuse, the DOJ is increasing its own efforts to identify fraudsters. The DOJ will rely on data analysis to uncover fraud schemes not identified by whistleblowers. Data analytics allows the DOJ to identify patterns across health care providers to identify trends and extreme outliers. The DOJ plans to use data analytics beyond just identifying health care fraud, including identifying COVID-19 related misconduct.
The attorneys at Chilivis Grubman represent healthcare providers of all types and sizes in connection with False Claims Act investigations and litigation. If you need assistance with such a matter, please contact us today.