Fraud and Abuse "Avengers" Now On The Case
On December 4, 2020, the U.S. Department of Health & Human Services (HHS) announced the formation of a False Claims Act (FCA) Working Group. The purpose of the Group is to enhance its partnership with the U.S. Department of Justice (DOJ) and the HHS Office of Inspector General (OIG) to combat fraud and abuse. This means that the feds are now working together even more closely. Watch out!
The Group is based, in part, on the premise that fraud on the federal government is not a victimless crime. Every dollar taken by fraudsters is a dollar that cannot be used by the American people to address important health issues, including COVID-19.
The monies available to fraudsters from the federal government are substantial. In 2020, HHS regulated over a third of the US economy, and provided over $1.5 trillion in grants and other payments to public and private recipients. HHS also paid over $170 billion in 2020 to thousands of contractors. Not to mention the unprecedented levels of support for private individuals and organizations to combat COVID-19.
The False Claims Act was originally enacted by Congress in response to fraud by defense contractors during the Civil War. The FCA applies to all providers who receive federal or state healthcare funds, including, but not limited to, the Medicare, Medicaid, Medicaid waiver, VA, TriCare Programs.
The FCA has become a powerful tool the government uses to pursue those who defraud government payment programs. Those who knowingly submit false claims to the government may be liable for treble damages plus penalties that may range from approximately $11,000 to $23,000 per false claim. The government may pursue such actions on its own, or private citizens may file FCA suits on behalf of the government in qui tam or whistleblower actions and receive a portion of any recovery.
The HHS Office of the General Counsel (OGC) created the False Claims Act Working Group to strengthen the working relationship with DOJ and the OIG. The Group includes former DOJ and healthcare fraud prosecutors, former private counsel for healthcare and life sciences companies, and HHS attorneys with extensive experience with vulnerable payment programs. The Group will identify potential FCA violations and refer them to DOJ and OIG for enforcement action. The Working Group will also help DOJ and OIG in FCA enforcement actions by providing HHS’ information about the intricate legal frameworks of the agency’s numerous funding programs.
HHS recognizes that close coordination with DOJ and OIG has always been needed, but the importance has been underscored by administration of significant supplemental funds to combat the pandemic. While the vast majority of private individuals and organizations have used funds in good faith to combat the pandemic, bad actors continue to operate.
The Group will take a number of steps to enhance prevention of fraud and abuse, including:
Provide enhanced and targeted training to HHS programs most vulnerable to fraud and abuse, which will allow OGC attorneys and HHS program operators to better detect and refer potential false claims to DOJ and OIG
Provide a focal point within HHS for consultation about legal requirements and recommendations about alleged violations
Serve as the conduit to over six hundred attorneys and their agency clients within HHS
Although it is certainly difficult to assess how effective this Group will be in meeting the above goals, the activities of the Group are likely to place providers under even greater scrutiny for fraud and abuse compliance.
In response, providers must dust off their Fraud and Abuse Compliance Plans to make sure they are up-to-date and fully implemented. Providers that come under scrutiny will surely be asked to demonstrate their commitment to compliance through their Plans. They are also likely to be asked to show how much money they have spent on fraud and abuse compliance. Get ready now!
Elizabeth E. Hogue, Esq.
Elizabeth E. Hogue, Esq.
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