Melissa L. Jampol, Member of the Firm in the Health Care and Life Sciences and Litigation practices, in the firm’s New York office, was quoted in the Health Care Compliance Association’s Report on Medicare Compliance, in “Surgeon Settles FCA Case Set in Motion by 'Data-Miner' Whistleblower,” by Nina Youngstrom.
Following is an excerpt:
FOCUS is cultivating a closer relationship between DOJ and data miners, which is unfortunate for defendants, said former federal prosecutor Melissa Jampol, with Epstein Becker Green. "We should all pause and think about whether it's appropriate to have companies formed for the sole purpose of filing qui tam complaints" (ie., whistleblower lawsuits under the FCA), she said.
"It seems to be straying far from what the drafters of the qui tam provisions intended in the post-Civil War era. I have spoken to people at DOJ who have a lot of concerns about it." One concern is that data miners "undermine the intent of the law, which is to enable inside folks with personal knowledge of fraud to be able to bring it forward."
The use of publicly available government data also may "vitiate" the public disclosure bar to whistleblower lawsuits, Jampol said. In other words, the fact the government already has the data may bar whistleblowers from litigating qui tams.
Data outliers alone may not be incriminating. They could just point to more complicated procedures performed at a tertiary care hospital, for example. "The rush to judgment and expense that goes along with being under the microscope for an analytics-driven type of investigation often has extremely serious impact for someone under investigation," Jampol noted.
As long as data miners are out there, however, organizations have another reason to double down on the use of data analytics in their compliance programs, she said. That way, they can identify and fix their errors before an enforcer comes knocking.
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Board of Directors / Member of the Firm