Bass, Berry & Sims Releases Annual Healthcare Fraud Report

Comprehensive Guide to Health Care Fraud Developments of 2017 and Forecast for 2018

NASHVILLE, Tenn.--()--Bass, Berry & Sims announced the release of its annual “Healthcare Fraud and Abuse Review 2017,” an in-depth and comprehensive review of enforcement settlements, court decisions and developments affecting the healthcare industry.

The annual Review is compiled by the firm’s Healthcare Fraud Task Force and is organized by industry sector, including hospitals and health systems, skilled nursing facilities, hospice, home health, and pharmaceutical and device. In addition to reviewing all healthcare fraud-related settlements, the Review includes updates on enforcement-related litigation involving the Stark Law and Anti-Kickback Statute, and looks at the continued implications from the government’s focus on enforcement efforts involving individual actors in connection with civil and criminal healthcare fraud investigations.

“The federal government’s healthcare fraud enforcement efforts continue to enjoy wide bi-partisan political support,” said Brian D. Roark, head of the firm’s Healthcare Fraud Task Force. “As a result, healthcare providers will continue to face a robust enforcement environment spurred on by the frequent filing of qui tam actions.”

Qui tam complaints – initially brought by whistleblowers under the False Claims Act (FCA) and filed under seal – continued to account for the vast majority of new civil fraud matters, with 674 new whistleblower lawsuits filed last year and nearly 3,500 such complaints filed over the last five years. These lawsuits are largely responsible for driving the federal government’s civil enforcement recoveries, which have amounted to more than $20 billion during that same time period.

The release of the Review also follows two key announcements made by the federal government concerning its healthcare fraud enforcement efforts relevant to the FCA. In early January 2018, a DOJ memorandum set forth factors for DOJ’s evaluation of whether to seek dismissal of FCA cases where DOJ has declined to intervene in the lawsuit. Then, later that same month, DOJ’s Associate Attorney General released a memorandum that limited DOJ’s use of agency guidance documents to establish liability in affirmative civil enforcement cases.

“The release of the DOJ memos on dismissal of declined FCA cases and the prohibition on the use of noncompliance with agency guidance documents as a means of proving FCA violations are significant developments for healthcare providers facing government investigations and related litigation,” said Matthew M. Curley, a Healthcare Fraud Task Force member and former Civil Chief at the U.S. Attorney’s Office in Nashville, Tennessee. “Along with the unfolding developments following the Supreme Court’s decision in Escobar, healthcare providers now have even greater tools at their disposal in pushing back against questionable theories of liability advanced by whistleblowers and the government in these matters.”

Enforcement efforts against pharmaceutical and medical device manufacturers remained a key initiative in the government’s healthcare fraud enforcement efforts. In particular, the government has directed significant resources in pursuing healthcare fraud and abuse matters related to opioid abuse, recently announcing the newly-created position of Director of Opioid Enforcement and Prevention Efforts and DOJ’s intention to file a statement of interest in multidistrict litigation involving hundreds of lawsuits against opioid manufacturers and distributors.

“Pharmaceutical and medical device companies are facing unprecedented pressure associated with the government’s enforcement efforts,” said John E. Kelly, managing partner of the firm’s Washington, D.C., office and former Assistant Chief for Healthcare Fraud with DOJ's Fraud Section. “The consequences of falling short of applicable statutory and regulatory requirements go far beyond large dollar settlements and include administrative scrutiny and potential individual liability in connection with civil and criminal enforcement efforts.”

“Healthcare leaders must be more vigilant in proactively identifying and addressing compliance issues,” said Lisa S. Rivera, a Healthcare Fraud Task Force member and former federal prosecutor, who served as Civil and Criminal Healthcare Fraud Coordinator at the U.S. Attorney’s Office in Nashville, Tennessee. “While the healthcare system continues to face considerable uncertainty, it remains critical for healthcare providers to monitor government enforcement activity and legal developments that will shape the healthcare fraud landscape during the coming year.”

For more information, download the 2017 “Healthcare Fraud and Abuse Review.”

About the Bass, Berry & Sims Healthcare Fraud Task Force

The Bass, Berry & Sims Healthcare Fraud Task Force represents healthcare providers in connection with fraud and abuse matters, including responding to governmental inquiries by the DOJ, U.S. Attorneys’ Offices, the HHS-OIG, federal program safeguard contractors, and various states’ Attorneys General offices. For more information, visit www.bassberry.com/healthcare-fraud.

About Bass, Berry & Sims PLC

With more than 270 attorneys representing numerous publicly traded companies and Fortune 500 businesses, Bass, Berry & Sims has been involved in some of the largest and most significant business transactions and litigation matters in the country. As one of the largest healthcare firms in the U.S., Bass, Berry & Sims has a depth of healthcare experience that ranges from operational and regulatory compliance to government investigations, litigation, and complex corporate transactions. The firm has participated in the evolution of the healthcare industry in Nashville, the capital of entrepreneurial healthcare and today represents more than 200 healthcare-related companies, 35 of which are publicly traded. For more information, visit www.bassberry.com.

Contacts

Bass, Berry & Sims PLC
Erin Ihde, 615-259-6736
eihde@bassberry.com

Release Summary

Bass, Berry & Sims' annual “Healthcare Fraud and Abuse Review 2017” covers enforcement settlements and court decisions affecting healthcare.

Contacts

Bass, Berry & Sims PLC
Erin Ihde, 615-259-6736
eihde@bassberry.com