AHLA's Speaking of Health Law

Expert Insights - Hot Topics in Fraud and Abuse

August 16, 2019
AHLA's Speaking of Health Law
Expert Insights - Hot Topics in Fraud and Abuse
Chapters
AHLA's Speaking of Health Law
Expert Insights - Hot Topics in Fraud and Abuse
Aug 16, 2019
AHLA Experts
AHLA experts take a deeper dive into legal developments affecting the health care industry.
Show Notes Transcript

Melissa Scott, Senior Managing Director with GlassRatner's health care industry group, speaks to Precious Gittens, Fresenius Medical Care North America, and Susan Gillin, Chief of the Administrative and Civil Remedies Branch at HHS OIG's Office of Counsel, about their presentation at AHLA's 2019 Annual Meeting in Boston looking at recent fraud and abuse trends. Sponsored by GlassRatner.



MS:
0:12
Hello. I'm Melissa Scott, Senior Managing Director with GlassRatner's healthcare industry group. As part of AHLA's Expert Insights podcast series, I'm here with Precious Gittens and Susan Gillen. They presented a session at this year's Annual Meeting in Boston entitled "Hot Topics in Fraud and Abuse." Precious and Susan, I'm excited to talk to you both about these subjects today. Do you want to start by telling a little bit about yourselves and your practice?
PG:
0:38
Well, thanks for having me, Melissa. My name is Precious Gittens. I am a senior director in the corporate compliance department at Fresenius Medical Care North America. We are a large vertically integrated healthcare organization that focuses on delivering the highest quality of care to people living with kidney disease. In my role, I oversee compliance investigations for our business operations in North America. Before joining the company, I was a partner at a national health law firm and a partner at an international multi-practice law firm. After law school, I completed a judicial clerkship in the Superior Court for the District of Columbia and then started my career as a federal prosecutor in the U.S. Department of Justice, U.S. Attorney's Office for the District of Columbia.
SG:
1:29
And thank you Melissa. This is Susan Gillen. I'm the Chief of the Administrative and Civil Remedies Branch, otherwise known as ACRB, at HHS OIG's Office of Council. My branch consists of a group of attorneys who work to resolve civil healthcare fraud cases with DOJ. We negotiate and monitor corporate integrity agreements. We resolve self disclosures, we pursue EMTALA and other administrative cases, and we defend OIG's exclusion actions. I've been at OIG since 2005, and I've been at ACRB the whole time. Before this, I was a clerk for a judge on the U.S. Tax Court and right out of law school I started my career at O'Melveny & Myers in New York.
MS:
2:07
Thank you both. What's the one thing from your session that you would like attendees to take away?
SG:
2:13
So for me, this is Susan. I love the opportunity to tell the healthcare law community about the creative ways that OIG has been working on priority areas that really affect the health care world as a whole. I mentioned our criminal work getting abusive opioid prescribers out of the programs, our work reducing payments to home health providers and geographic hotspots, and our work across OIG disciplines to develop administrative cases. We are focusing on leveling the playing field, so that good providers can serve beneficiaries without worrying about being edged out of the market by those committing fraud. All of our work in OIG contributes to that goal: audits, civil cases, compliance with corporate integrity agreements, investigations, and evaluations.
PG:
2:56
It was my goal to offer health care professionals thoughtful, practical, and current information and analysis on health care fraud and compliance issues. Some attendees most valued our review of new case law regarding the materiality standards and false claims act litigation including significant developments since the landmark Escobar decision as well as our discussion of the arguments that defendants have raised since Escobar to gain dismissal of cases or even reversal of judgements. Other attendees were most interested in learning about anti-kickback and compliance developments and recommendations as to how health care boards and executives may use recent DOJ guidance to think through compliance programs strategically and meaningfully and proactively address shortcomings. The takeaway from our session was the particular content that is most relevant to the attendees as they face real life challenges in their day to day roles.
MS:
4:05
Excellent. What enforcement trends do you see continuing in the foreseeable future and what are some emerging enforcement trends to watch?
PG:
4:14
We're likely to see aggressive opioid related enforcement with the government continuing to target manufacturers and distributors such as pharmacies, pain management clinics, drug testing facilities, and individual prescribers. We should expect the government to continue to pursue kickbacks for referrals. Going forward, there may be increased focus on telemedicine health care fraud schemes and increased enforcement activity against electronic health record companies. Finally, we likely will see increased coordination with federal, state, local, and foreign enforcement authorities and resolving potential claims arising from the same alleged misconduct and the government will continue to focus on individual accountability.
MS:
5:06
Given the government's increased focus on individual accountability, what advice should lawyers give their clients on compliance?
SG:
5:14
Yeah. I definitely think the government is not going to stop asking "who caused the fraud" and the stakes are very high given recent convictions and exclusions of individual executives and medical professionals, so I would advise board members, executives, and managers to ask questions like that: "who caused the fraud." Obviously board members and employees have different roles to play, but they are all important to compliance. Board members should be asking the compliance officer in regular closed door meetings: How do you know things are fine? What are you doing to kick the tires? What are some internal monitoring practices you're focusing on? Give me an example of a compliance concern that was raised and walk me through how you handled it. And for employees, executives, and managers, remember that you are personally responsible for the acts of your teams and you set the tone for culture and integrity. Try to communicate that doing things the right way is just as important as meeting financial goals. And then walk the walk. Make sure you have the right experts at your disposal when you have questions about whether a proposal is the right thing to do.
MS:
6:22
Health care fraud recoveries have dipped in the last couple of years. Is there a particular reason for the decline?
PG:
6:30
You know, Melissa, I'm not sure that health care fraud recoveries have actually dipped in the last year. Here's why. Late last year, DOJ's civil division issued its annual report detailing false claims act statistics for fiscal year 2018. Now, DOJ recovered approximately $2.8 billion in settlements and judgements from civil fraud matters brought under the FCA. Sure that amount is almost $600 million less than fiscal year 2017. But here's the thing: the 2018 statistics include both healthcare and non-healthcare recoveries, and the data shows that health care recoveries actually increased by approximately $329 million more than in 2017 while non-healthcare recoveries in 2018 decreased. So that is to say DOJ's 2018 statistics reflect a decline in overall FCA recoveries due to a drop in none health care recoveries, and an increase or upward trend in healthcare recoveries. Of the $2.8 billion total recovered, approximately $2.55 billion, or almost 88% of all recoveries, came from healthcare related cases and with recoveries from healthcare related cases exceeding $2 billion for the ninth consecutive year in a row, it appears that DOJ's primary focus for civil fraud enforcement under the FCA is in this sector.
MS:
8:17
Are fewer large settlements a sign that anti-fraud efforts are serving as an effective deterrent for fraudulent behavior?
SG:
8:25
Maybe. I think that over the last 20 years we've seen so many ebbs and flows in the total healthcare fraud recoveries. There were some very large settlements in the last 10 years in particular that are not necessarily being repeated every year. Some industries have changed completely since, say 1998, and have devoted significant resources to compliance. In those industries, which tend to be the ones with the most resources, CIA's civil settlement payments and criminal fines probably played a role in incentivizing companies to catch potential fraud earlier and build strong compliance programs. The government's focus on individual accountability, as we discussed before, probably also played a role in this decline as individuals in powerful roles began to consider their liability and responsibilities. But we know that with the healthcare industry being as dynamic as it is, we need to stay ahead of the curve and spot potentially problematic behavior early. There's always a new creative scheme just around the corner. The deterrent effect of past enforcement actions could play a role in preventing these, but new players to the industry usually don't have the history and education that would be ideal. OIG tries to make it easy for anyone who wants to be compliant to find information and tools for creating effective compliance programs and OIG also provides a multitude of information to alert the public and the industry to potentially fraudulent schemes. We work hard to provide these resources to help deter future behavior or prevent it before it starts that could harm our beneficiaries and our programs.
MS:
9:59
DOJ has been active of late in the updating guidance including policies on evaluating corporate compliance, program effectiveness, and on determining cooperation credit. What are a few key takeaways from these new guidance documents?
PG:
10:13
Some recent activity includes the incorporation of certain guidance documents and updated policies into the Justice Manual, which is the internal document for federal prosecutors that contains DOJ investigations and enforcement guidelines. The justice manual now includes the Granston Memo's key factors that prosecutors should consider when determining whether to file a motion to dismiss a qui tam case after the government has declined to intervene in the case. The revised principles of the Yates Memo and the recent FCA cooperation credit guidelines are also incorporated into the Justice Manual. Separately, DOJ has updated its guidance document entitled, "Evaluation of Corporate Compliance Programs," which is a document aimed at helping criminal prosecutors determine an organization's criminal culpability on amount of penalty and need for corporate monitorship or reporting obligations. I believe the recent activity by DOJ is meant to promote more transparency as to what DOJ values in resolving fraud cases and to incentivize corporations and individuals to self-disclose misconduct and cooperate with the government in FCA and other investigations. Still, it is important for companies and individuals to understand that the most powerful tool a prosecutor has is not a CID, subpoena, or search warrant. It is prosecutorial discretion. The discretion a prosecutor has to decide which cases to investigate, whether to prosecute a case, and how to resolve it, and the exercise of that discretion varies as does the application of these DOJ guidelines in practice. One thing's for sure: for cases that come under its review, DOJ will at some stage evaluate the sufficiency, effectiveness, and functioning of the healthcare company's compliance program, especially as companies grow in size, scope, complexity, and as they become more engaged in international business. Accordingly, I believe the role of ethics and compliance professionals will have even greater importance in organizations that continue to innovate.
MS:
12:50
Are there any other closing thoughts for your AHLA colleagues you'd like to share?
SG:
12:57
I don't think so.
PG:
13:00
It's been a pleasure talking with you, Melissa. Thank you.
MS:
13:03
Thank you both.
SG:
13:06
Thank you very much for having us.
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