With much fanfare, the Department of Justice (DOJ) has rolled out a series of headlines detailing its enforcement efforts in the wake of COVID-19. At the end of March, the government announced a kickback case against a marketer who allegedly steered patients towards COVID-19 and genetic cancer testing. And, then weeks later, the government announced charges against a duo who allegedly received improper stimulus funds under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). In the midst of this pandemic and unprecedented government spending, DOJ has promised to vigorously pursue cases of alleged fraud. Given this posture, and with the possibility of seemingly unintentional conduct being viewed skeptically, health care practitioners should remain vigilant of conduct that could expose them to potential government scrutiny. This article outlines the expected playbook of DOJ prosecutors in pursuing alleged fraud, with specific examples of cases over the past few weeks, and then concludes with practical advice to help health care practitioners avoid scrutiny.
Government’s Likely Arsenal
While most health care attorneys are familiar with the government’s traditional arsenal of enforcement tools, a brief recitation of the most common authorities is useful. This article also highlights some of the less well-known statutes that might be triggered by DOJ’s scrutiny.
False Claims Act
The government’s primary tool in tackling health care fraud has historically been the False Claims Act (FCA). While the statute originally was enacted in response to procurement fraud, the FCA is primarily utilized today in response to allegations concerning health care fraud. In broad strokes, the FCA provides that any person who knowingly submits false claims to the government is liable up to treble the government’s damages plus monetary penalties.
As most practitioners are aware, the government’s use of the FCA has increased dramatically. However, the FCA only allows the government to tackle alleged fraud involving federal health care payors (e.g., Medicare, Medicaid, TRICARE). Where the alleged fraudulent conduct does not affect the federal government, the FCA has no applicability.
If past is any prologue into the future, the FCA will likely be a significant arrow in the government’s quiver to recoup allegedly improper use of federal money, particularly funds that flow through the CARES Act. Similar to the government investigations that followed the 2008 Troubled Asset Relief Program (TARP), the playbook for most of the financial recoveries was through the FCA.
The complete article, "Enforcement in the COVID-19 Era: The Government’s Likely Playbook," was originally published by the American Health Law Association on May 15, 2020, and a downloadable version can be found by clicking here.