Government Investigations and Enforcement

Overview

Our Healthcare Industry team includes attorneys who dedicate their practices to representing healthcare providers in a wide range of administrative, civil False Claims Act, and criminal healthcare fraud enforcement matters. We are highly skilled in the numerous areas that are subject to enforcement, including referral relationships and anti-kickback statutes, HIPAA, coding and billing issues and medical necessity.

Administrative Enforcement

We routinely guide clients through audits and investigations conducted by the Centers for Medicare and Medicaid Services (CMS), Zone Program Integrity Contractors, Medicare Administrative Contractors, the U.S. Department of Health and Human Services (HHS), Office of Inspector General (OIG) and state inspector generals and regulatory agencies throughout the country. We assist our clients in conducting internal investigations and identifying potential error rates, responding to records requests and providing written and oral advocacy before enforcement authorities in an effort to avoid enforcement action. Should an enforcement action arise, we have substantial experience defending against a broad range of matters, including payment holds and suspensions, administrative penalty cases, overpayment demands, state department actions and OIG exclusion proceedings.

False Claims Act Enforcement

We partner with our provider clients across the country to manage and defend False Claims Act investigations from start to finish. We conduct internal investigations and audits, respond to administrative subpoenas and civil investigative demands and negotiate with the U.S. Department of Justice (DOJ), state attorneys general and other federal and state authorities for favorable resolutions of a False Claims Act investigation short of a trial. If the government or an individual relator pursues a case, our team has the right combination of healthcare law expertise and trial skills to defend clients in the courtroom.

Criminal Enforcement

As the government does not conduct healthcare fraud investigations in a vacuum, our clients have relied heavily on our team to provide counseling with respect to possible criminal allegations. Our team, which includes several former federal healthcare fraud prosecutors, has both the practical insight and substantive healthcare law experience to effectively respond to grand jury investigations and search warrants, obtain non-prosecution agreements and other favorable pretrial diversions, defend against indictments and, if necessary, try cases to bench trials or federal and state juries.

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Government Investigations and Enforcement News

CMS Proposes Increased Rewards for Reporting Fraud and Abuse (5/2/2013)
CMS recently published a proposed rule modifying certain provisions in their Incentive Reward Program (IRP) to sweeten the incentives for reporting sanctionable conduct. Revisions to the IRP increases the potential reward from 10 percent of the overpayments recovered in the case or $1,000, whichever is less, to 15 percent applied to the first $66 million for the sanctionable conduct. This means an individual could receive a reward of $9.9 million if CMS recovers $66 million or more.

Sixth Circuit Holds Physician Supervision and Enrollment Issues Are Not Conditions of Payment for Purposes of False Claims Act Liability (4/18/2013)
The Sixth Circuit Court of Appeals recently issued a decision overturning an $11.1 million False Claims Act verdict against MedQuest Associates, Inc. for submitting claims to Medicare in violation of the Medicare conditions of participation. In this decision, the Sixth Circuit expanded on its recent precedent by stating that the False Claims Act should not be used to penalize providers for technical noncompliance with the complicated Medicare regulatory scheme.

OIG Updates Provider Self-Disclosure Protocol (4/18/2013)
On April 17, 2013, the HHS OIG published a revised Provider Self-Disclosure Protocol (SDP) that clarifies the process for healthcare providers, suppliers or other individuals or entities subject to the OIG's civil monetary penalty authority to voluntarily identify, disclose and resolve instances of potential fraud involving federal healthcare programs.

No Sale: Sales Commissions Violate Anti-kickback Statute; Prevent Enforcement of Nonsolicitation (3/7/2013)
A durable medical equipment distributor entered into an agreement to pay a salesman commissions ranging from 18 to 22 percent on the volume of his sales. The court held that the salesman did not have a bona fide employment relationship.

Too Big to Exclude; Too Much Wrongdoing to Ignore (2/21/2013)
A 2007 audit initiated by a Medicare Program Safeguard Contractor (PSC) discovered that a North Carolina provider had a high incidence of inpatient billings for patients who did not stay in the hospital overnight. The PSC's three-year sampling of hospital records identified the provider as having the largest percentage of “zero-day stay” billings in the state.

10 Fraud and Abuse Enforcement Trends You Can't Afford to Ignore in 2013 (2/7/2013)
To paraphrase a famous quote, “Those who do not learn from history are doomed to repeat it,” and providers who ignore the significance of the federal government's healthcare fraud enforcement efforts in 2012 do so at their own peril. Using lessons from 2012, we have compiled a list of the ten fraud and abuse enforcement trends that providers simply cannot afford to ignore in 2013.

A To Zs of Stark Law Compliance (12/6/2012)
Providers have multiple targets on their backs as enforcement actions for Stark Law violations may be initiated by HHS, CMS, HHS OIG, DOJ and whistleblowers in False Claims Act litigation. In this aggressive enforcement environment, healthcare providers should scrutinize their business relationships for compliance with the Stark Law. To that end, the following “A to Zs of Stark Law Compliance” provides an overview of the law and identifies key issues facing healthcare providers.

A to Zs of Healthcare Compliance and Enforcement (6/21/2012)
Medicare and Medicaid providers across the country are facing an onslaught of audits and sanctions, civil lawsuits and criminal prosecutions as a result of recent federal healthcare legislation and regulations. From my experience as a federal healthcare prosecutor, it is clear that the first line of defense against these enforcement measures is a compliance program that is fully followed and enforced. To that end, we have prepared the following “A to Zs of Healthcare Compliance and Enforcement” as a practical takeaway to share with your organizations.

Select Experience

  • Represented academic medical centers, hospitals and health systems, physicians and other providers in conducting internal billing compliance audits and self-disclosure submissions to Medicare and Medicaid payors.
  • Represented academic medical center in self-disclosure to the OIG regarding outpatient billing errors, including Evaluation and Management (E&M) services, Ambulatory Payment Classifications (APCs) and observation services.
  • Represented hospitals in the investigation and evaluation of the appropriateness of certain “short stay” inpatient admissions, including assistance with the voluntary disclosure of identified overpayments based on such investigations, when necessary.
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Experience

  • Represented academic medical centers, hospitals and health systems, physicians, and other providers in conducting internal billing compliance audits and self-disclosure submissions to Medicare and Medicaid payors.
  • Represented academic medical center in self-disclosure to the OIG regarding outpatient billing errors, including Evaluation and Management (E&M) services, Ambulatory Payment Classifications (APCs), and observation services.
  • Represented hospitals in the investigation and evaluation of the appropriateness of certain “short stay” inpatient admissions, including assistance with the voluntary disclosure of identified overpayments based on such investigations, when necessary.
  • Represented hospital in self-disclosure to the OIG related to Stark Law violations involving physician relationships.
  • Represented academic medical center before the DOJ, the OIG and the Medicare carrier on issues related to teaching physician documentation and Medicare billing rules.
  • Represented client in a state inspector general action and administrative litigation to recover alleged Medicaid overpayments, resulting in substantial reduction in overpayment demand and favorable settlement for client.
  • Represented large physician group in negotiating a settlement of possible civil and administrative claims arising out of submission of claims for services of an excluded physician.
  • Represented hospitals and physicians in compliance matters related to illegal remuneration, Stark Law and Civil Monetary Penalty Law issues.
  • Represented healthcare providers in administrative appeals before state and federal agencies, including issues related to graduate medical education, disproportionate share payments, compliance with grants and licensing.
  • Represented medical device company with respect to allegations of kickbacks and potential off-label use.
  • Represented multiple pediatric rehabilitation facilities in relation to administrative investigations by the state inspector general regarding alleged beneficiary inducements and billing for medically unnecessary services.
  • Represented health system with respect to allegations related to Medicare coverage of implantable cardiac defibrillators.
  • Represented university faculty plan related to an audit of Medicare and Medicaid billings.
  • Represented mobile diagnostic testing company in relation to Medicare Fraud Strike Force investigation and prosecution targeting multiple individuals and businesses for healthcare fraud and money laundering.
  • Represented home health agency with respect to healthcare fraud grand jury investigation and forfeiture of bank accounts.
  • Represented former officer of large diagnostic testing laboratory in relation to criminal administrative subpoena requests.

Recognition

  • Recognized as one of the top law firms for client service, we were named to the 2018 BTI Client Service 30 for the fourth consecutive year.

News

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In The Blogs

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Health Law Update
Capitol Hill Healthcare Update
June 26, 2018
LAWMAKERS COOL TO TRUMP PLAN ON HHS, GOVERNMENT REORGANIZATION The response from lawmakers on Capitol Hill to the White House plan to reorganize the federal government – including proposed changes to multiple healthcare agencies – ranged...
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Health Law Update
Capitol Hill Healthcare Update
By Christian B. Jones
June 18, 2018
HOUSE OKs DOZENS OF OPIOID-RELATED BILLS; MORE VOTES SCHEDULED The House last week approved 38 bills that lawmakers hope will stem the opioid epidemic, and it scheduled votes this week on at least a dozen more. Most bills were...
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Health Law Update
Capitol Hill Healthcare Update
By Christian B. Jones
June 11, 2018
HOUSE TO VOTE ON DOZENS OF OPIOID BILLS WHILE SENATE READIES COMPREHENSIVE MEASURE The House this week will begin considering some of the 70 different opioid bills that have been approved by eight different committees, focusing on...
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Health Law Update
Capitol Hill Healthcare Update
By Christian B. Jones
May 21, 2018
RYAN SAYS POTENTIAL COMPROMISE COMING ON RISK EVALUATION AND MITIGATION STRATEGY DRUGS House Speaker Paul Ryan, R-Wis., last week said congressional leaders are trying to hammer out compromise legislation that would make it easier for...
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Health Law Update
Proposed IPPS Rule Changes
By Baylie M. Fry, Simone O. Otenaike
May 15, 2018
The Centers for Medicare & Medicaid Services (CMS) recently released its proposed rules for the Hospital Inpatient Prospective Payment System (IPPS) for fiscal year (FY) 2019. As discussed below, the proposed rule focuses on promoting...
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