For physicians, hospitals, managed care organizations, and other health care providers, every aspect of service delivery is closely scrutinized for fraud and abuse.
In a space where simple mistakes can trigger onerous enforcement actions, our Fraud and Abuse Compliance Counseling and Defense lawyers work with providers to mitigate legal risk and defend them in government investigations.
Staying in Front of Compliance Issues
The best way to handle government inquiries is to avoid triggering them in the first place. Our clients count on us to structure compliance strategies that comport with their operational needs and risk tolerance. We scrutinize their processes and procedures to stay in front of any issues concerning the statutes—the Stark Law, the federal Anti-Kickback Statute, the Eliminating Kickbacks in Recovery Act, the False Claims Act (FCA), etc.—that are most likely to see enforcement. Often, our clients will sense a possible problem in advance of any government inquiry and will ask us to investigate and—depending on our findings—recommend corrective action.
Defending in Enforcement Actions
Government investigations can be lengthy, expensive, and disruptive to business operations. Our attorneys are the first ones called when a subpoena arrives, and our clients rely on us to respond to any investigation with an eye toward narrowing its scope or making it go away. Our deep knowledge of provider relationships in all health care categories—as well as their billing and reimbursement practices—informs our response and gives us strong arguments to offer in defense.
Understanding the Agencies
Whether we’re preventing government investigations or defending them, most of the issues that come up are ones we’ve seen many times before. Our attorneys have a deep understanding of federal, state, and local agencies and how best to meet their expectations. This invariably works to our clients’ advantage when responding to investigations and negotiating compliance agreements.
- Protected a nonprofit health care provider from fraud and abuse liability after it entered into a joint venture with another hospital and local physicians. Due to a consulting error, distributions were made before the required assets were transferred to the joint venture. We re-characterized certain distributions in a manner that was permissible and eliminated the need for a voluntary disclosure to the government or dissolution of the joint venture.
- Negotiated a favorable result for a private investment manager in a matter before the Office of Inspector General (OIG) in which OIG concluded that a corporate integrity agreement (CIA) was not necessary with respect to a qui tam relator’s allegations that a health care company in the client’s portfolio violated the FCA by engaging in “swapping” arrangements.
- Conducted an internal investigation of an overpayment caused by a regional health care entity client’s overreliance on an artificial intelligence software program. Our findings led to a disclosure to a government agency and corrective action.
- Successfully defended a health care provider against an FCA lawsuit asserting that our client was part of a scheme to allegedly submit false claims for health care costs reimbursed by the federal Medicare, Medicaid, and TRICARE programs. We convinced the court that the qui tam relator failed to allege sufficient details proving that the claimed scheme led to our client submitting false claims to the federal government.
- Conducted an internal investigation into a whistleblower complaint against a Florida health system client. The complaint alleged possible legal violations by the company’s interim system CEO that were also potential violations of the client’s obligations under a CIA. After investigating the allegations, including reviewing documents and conducting interviews, we prepared a notification of the reportable event to OIG concerning the interim system CEO’s probable violations of the Anti-Kickback Statute. Our investigative findings led to the interim system CEO’s termination.
- Obtained a complete dismissal of a Medicare Advantage risk adjustment case against our health care client without any finding or admission of liability in exchange for a contribution of just 5 percent of the settlement amount. The cost to settle this case was a fraction of the costs the client would have incurred in litigating the case to a conclusion.
- Secured the dismissal of a federal criminal indictment in a federal court in the South charging our client—the former CEO of a durable medical equipment supplier—and several co-defendants with violating the Anti-Kickback Statute. The dismissal of a federal criminal case is unusual, even more so in this case, because the government sought dismissal in response to our defense motion arguing improper venue.
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