Each summer in recent years, the U.S. Department of Justice (DOJ) and associated fraud enforcement partners have indicted a number of healthcare professional defendants in multiple cases across the country, and this summer the tradition continued.
of Department of Justice 2024 National Health Care Fraud Enforcement Action Press Release, issued June 27, 2024 The investigation into the Department of Justice’s summer 2024 sweep includes criminal charges against 193 defendants, including 76 doctors, nurses and other licensed health care professionals from 32 federal districts across the United States, for allegedly engaging in a variety of health care fraud schemes that resulted in intended losses of approximately $2.75 billion and actual losses of $1.6 billion, according to Department of Justice estimates.
of The Centers for Medicare & Medicaid Services’ (CPI/CMS) Center for Program Integrity released the results separately. The Department of Justice disclosed that it has taken adverse administrative actions against 127 health care providers for allegedly engaging in health care fraud over the past six months. (CPI/CMS actions, including suspension of payments and revocation of billing privileges, are not routinely reported by CMS or publicly available in the CMS database, so we cannot verify their consistency with the Department of Justice actions listed above.) As the CPI/CMS announcement stated, this summer’s enforcement actions “are the direct result of close coordination between the Health Care Fraud Unit, U.S. Attorneys’ Offices across the country, state attorneys general, Medicaid Fraud Control Units, and law enforcement partners, including the U.S. Department of Health and Human Services Office of Inspector General (OIG), the FBI, the Drug Enforcement Administration, and the Department of Homeland Security Investigations.”
The charges against the defendants are broad and do not appear to be overly focused on any particular medical field or assert current legal theories. National Healthcare Fraud Enforcement Action Press Release Looking at their history and context, the alleged misconduct identified by the Department of Justice reflects a “recurring pattern. ” These cases provide insight into the Department’s workload and priorities and could help providers identify areas of risk.
- Medical necessity is again a popular enforcement topic. Although there are statutory requirements to support most claims for Medicare items and services, failure to prove medical necessity can be a difficult theory to prove and often involves costly disputes and significant differences of opinion among experts. Indeed, in the civil False Claims Act context, appellate courts have dismissed cases where experts disagreed on the issue. For example, United States v. AcelaCare, Inc. 938 F.3d 1278 (11Number Cir. 2019).
- Commercial Insurance It has been identified as a victim organization in multiple lawsuits. Other “non-traditional” organizations named as victims in the summer crackdown include Amtrak and the Department of Energy. This focus is a reminder that providers should review and be confident in the integrity of their billing to all payers, not just federal health care programs.
- Kickbacks to Medicaid patients Some cases appear to continue to distinguish between cases where intent is easier to prove (criminal) and cases where intent is less clear (civil monetary penalties or CMPs). For an interesting discussion of the differences between the OIG’s Anti-Kickback Regulations (AKS) and the CMP regarding beneficial inducements, see below. General Questions Regarding HHS-OIG’s Certain Fraud and Abuse Authorities.
- Adderall prescription Several lawsuits have been filed in California over alleged improper prescribing of this controlled substance, with some of the allegations surrounding the use of telehealth, an area that continues to be a focus for both DOJ and HHS.
- The absence of a physician or absence of a physician to order an item or service.–Relationship with patients, Affirms the Enforcement Agency’s view that a physician or licensed equivalent must be demonstrated as a gatekeeper sufficiently involved to support Medicare coverage for billed items and services. As health care evolves to a more patient-driven model (e.g., patients identifying and requesting their own tests from a menu of commercially available tests for tests that legally still require a physician order), this theory is likely to continue as a profitable area of focus for the Department.
- Marketing with alleged kickbacks We emphasize that offering compensation (direct or indirect) for referrals continues to make headlines in the summer takedowns, and it remains good practice to ensure that provider marketing agreements meet the elements of the AKS safe harbor.
- Patient ProtectionThis remains a top priority area for both the Department of Justice and the Department of Health and Human Services, including conduct related to drug diversion and “substandard care,” and both departments are on record as making patient protection an enforcement priority.
What should providers do with this information? As providers reexamine their risk assessment practices in accordance with OIG compliance guidance, the focus areas of DOJ’s summer investigation may suggest additional risk areas to consider or address.
Want to learn more?
