health care enforcement defense

The President has released a “budget blueprint” for fiscal year 2018. Although there are many aspects of the budget blueprint to digest, several budget items signal that government health care fraud enforcement remains a priority under the new administration.

  • Overall, the President’s 2018 budget requests $69.0 billion for the Department of Health and Human Services (“HHS”). According to the blueprint, this a $15.1 billion or 17.9% decrease from the FY 2017 annualized level.
  • However, the budget blueprint increases funding for the Health Care Fraud and Abuse Control (HCFAC) program, which is designed to coordinate federal, state and local health care fraud and abuse enforcement efforts.
  • Specifically, the blueprint proposes $751 million of discretionary funding for the HCFAC program, which exceeds FY 2017 funding by $70 million, according to the budget blueprint.
  • The budget blueprint explains that additional funding for the HCFAC program “has allowed the Centers for Medicare & Medicaid Services in recent years to shift away from a ‘pay-and-chase’ model toward identifying and preventing fraudulent or improper payments from being paid in the first place.”

In a proposed budget that cuts HHS funding by nearly 18%, the increase in HCFAC funding stands out. The President’s budget affirms a trend that we have observed away from “pay-and-chase” toward proactive data analysis. As discussed in a prior post, recent False Claims Act cases strongly suggest that growing experience with data mining has given enforcers greater confidence in their ability to identify potential fraud and abuse. As a result, proactive data analysis could lead to a greater number of FCA cases originating with government investigators instead of through qui tam FCA actions.

Today, my colleagues Laurence Freedman, Samantha Kingsbury, and Karen Lovitch released the latest in our ongoing series reviewing health care enforcement activities in 2016 and their impacts looking forward to 2017. The client alert highlights major case law developments that influenced health care enforcement in 2016 and that will likely have major effects on the health care industry in the year ahead.

The client alert addresses the following issues raised by these important cases and what each might mean in 2017:

  • Implied false certification theory and materiality requirement (Escobar)
  • Anti-Kickback Statute discount exception and safe harbor (Organon; CCS Medical)
  • Proof of falsity in False Claims Act medical necessity cases (AseraCare)
  • Statistical sampling to prove liability in False Claims Act cases (Agape; Life Care Centers of America)

Please refer to our Health Care Enforcement Review and 2017 Outlook blog post series for additional insights on key government policies, regulations, and enforcement actions from 2016 and their expected impact on health care enforcement in the year ahead. We also encourage you to sign up for our annual webinar, Health Care Enforcement Review & 2017 Outlook, which will take place on Wednesday, January 25 at 1:00 p.m. ET.  Registration and additional information are available here.

Yesterday, Mintz Levin’s Health Care Enforcement Defense Group published its most recent Health Care Qui Tam Update.  This Update covers 42 health care-related False Claims Act qui tam cases that have been unsealed since the last Health Care Qui Tam Update.

Highlights of this Update include:

  • A substantial majority of the unsealed cases have been under seal for periods well in excess of the required statutory period, demonstrating that extension of the seal in qui tam actions continues to be routine.
    • Of the 44 complaints filed in these 42 cases, 75% were filed before 2015, with one unsealed complaint dating back to November 2008 and two others dating back to 2010 and 2011, respectively.
    • Of the remaining complaints, five were filed in 2012, fourteen in 2013, eleven in 2014 and eleven in 2015.
  •  The cases identified were filed in federal district courts in 15 states and the District of Columbia.
  • The federal government declined to intervene in 25 of the 42 cases.

To read the entire Update, click here.

As 2015 comes to a close and you look ahead to the New Year, we hope that you will consider joining us for an informative webinar on health care enforcement trends for 2016. On Wednesday, January 13, 2016, my colleagues Hope Foster, Laurence Freedman, and Bridget Rohde will host “Health Care Enforcement in 2016: A Look Back on 2015 and Forecasting the Year Ahead.” The webinar will highlight key enforcement activities from 2015 and the trends we expect to see in 2016. Continue Reading Upcoming Webinar and Report – Health Care Enforcement in 2016

Our Health Care Enforcement Defense Practice has published its most recent Qui Tam Update analyzing 68 recently unsealed health care related whistleblower cases. In this issue, the team analyzes overall trends in the 68 cases, and looks more closely at three notable cases. First we review a settlement that resulted in Arizona’s largest-ever False Claims Act recovery – the government may have required more from the defendant if it had not previously self-disclosed related overpayments. Then we highlight the United States’ continued interest in the billing practices of SNFs, which provide fertile ground for false claims litigation. Finally, we review a case that is being touted as yet another victory for the DOJ-HHS HEAT partnership, due to the “powerful tool” of the False Claims Act.

Read the full newsletter here.

In 2013, federal and state enforcement agencies again took aim at the health care industry.  Enforcement efforts targeted the domestic and international activities of health care providers, facilities, manufacturers, and other entities’ from all angles through civil actions, False Claims Act cases, securities fraud investigations, and criminal prosecutions.  In a special alert from Mintz Levin’s Health Care Enforcement Defense Practice, members Hope Foster, Tracy Miner, and Bridget Rohde focus on the most important trends and takeaways from 2013’s health care enforcement activities and provide insight on how these lessons should inform clients’ defensive strategies in the coming year.  Click here to read the special alert.