Entering a New Era: Criminalizing Health Care Non-Compliance

AHLA Connections August 2015

Gary W. Herschman and Jack Wenik, Members of the Firm in the Health Care and Life Sciences practice, and Daniel C. Fundakowski, an Associate in the Health Care and Life Sciences practice, authored an article for AHLA Connections titled “Entering a New Era: Criminalizing Health Care Non-Compliance.” (Read the full version – membership required.)

Following is an excerpt:

As health care costs in the United States continue to grow, fraud enforcement has increased in both scale and severity. Not only have several new antifraud programs emerged in recent years that reflect the federal government’s revitalized antifraud agenda, but the federal government also has increasingly sought criminal sanctions for health care noncompliance. This recent trend is unsettling for entities and individuals serving federal health care program beneficiaries, especially since the federal government is seeking incarceration for violations of laws and regulations that are complex, technical, and anything but straightforward.

The federal government is moving beyond False Claims Act (FCA) recoveries and civil monetary penalties, and health care providers now face an era when health care non-compliance is increasingly being criminalized. The U.S. Department of Justice (DOJ) Criminal Division has announced that it is automatically reviewing all new civil qui tam complaints for potential parallel criminal proceedings. … The federal government’s investigative methods—including the use of administrative “HIPAA subpoenas,” the product of which can be used in either a civil litigation or criminal prosecution—have weakened what had been a rather strong line of demarcation between civil and criminal investigations.