Increased DOJ Enforcement in the Health Care Space
Health care providers and entities take note: The Department of Justice (DOJ) is increasingly focused on enforcement in the health care space.
DOJ has long prioritized health care fraud, but under the prior administration gave increased attention to “guns and drugs” issues. Now, the agency appears to be dedicating greater resources to enforcement of health care-related violations; last year, DOJ opened 573 new False Claims Act (FCA) cases involving health care fraud, compared to 507 in fiscal year 2019.
Comments by Michael Granston, Deputy Assistant Attorney General for DOJ’s Commercial Litigation Branch, suggest this trend will continue. At a recent conference, Granston predicted that DOJ will increasingly focus on violations related to electronic health records, abuse of senior citizens in nursing homes, Medicare’s managed care program, COVID-19 relief funds and actions that contribute to the opioid epidemic.
In particular, the enormous amount of government spending associated with the COVID-19 pandemic and the complicated requirements associated with the COVID-19 relief programs mean we will likely see an increase in fraud-related investigations in the health care sector. COVID-19-related fraud can encompass a wide variety of activities, including but not limited to submitting claims to government health care programs for medically unnecessary testing or for telemedicine encounters that did not occur, providing unreliable COVID-19 test results to beneficiaries, or failing to comply with COVID-19 relief funds record-keeping and reporting requirements. The FCA would be implicated if a provider knowingly submitted, or caused to be submitted, false claims for payment to a government health care program.
DOJ has already taken steps to prosecute violations of this kind. Earlier this year, DOJ announced criminal charges against 14 defendants for their alleged participation in various health care fraud schemes related to COVID-19 testing. Last fall, DOJ announced an historic nationwide enforcement action involving 345 charged defendants across 51 federal districts, including more than 100 doctors, nurses and other licensed medical professionals. The defendants were charged with submitting false and fraudulent claims to federal health care programs and private insurers, including claims related to telemedicine, substance abuse treatment facilities and opioid distribution schemes.
The agency believes that its “vigorous pursuit” of health care fraud not only restores funds to federal programs such as Medicare, Medicaid and TRICARE, but also “prevents billions more in losses by deterring others who might otherwise try to cheat the system for their own gain.” DOJ’s efforts in this space will likely be led by the agency’s National Rapid Response Strike Force, created late last year as part of the Health Care Fraud Unit of the DOJ Criminal Division’s Fraud Section. The Strike Force’s mission is to investigate and prosecute fraud cases involving major health care providers that operate in multiple jurisdictions, including major regional health care providers.
If you have questions about health care compliance or FCA enforcement, reach out to a member of the Brooks Pierce health care or government investigation teams.