Just Added

It should go without saying in this day and age, that any entity which bills federal payers without having in place a robust compliance program is simply playing with fire. Too many physician practices and other entities adopt a plan and then simply let it languish. We have had to update our Compliance Plan Development Protocol multiple times to be sure we have captured developing risk areas. Likely we will have to do it again soon. However, if anyone had doubts about the need to review their compliance plan, update it and then comply with its direction, in April 2019 the US Department of Justice Criminal Division (!) published a document on how they think prosecutors should conduct Evaluation of Corporate Compliance Programs. Whether a program is truly effective is directly relevant to whether there might be mitigating or aggravating factors to lower or raise the criminal penalties associated with violating behavior. But the real import of the guidance is that all entities subject to federal law ought to take this opportunity to revamp and amp up their compliance programs. In our AGG Note, we have taken the DOJ generic guidance and recast it in the context of the clients we represent – physician practices, IDTFs, health systems, pharmacies, DME providers, practice managers, billing companies and the like. We have identified a simple ten point list of things to revise in upgrading a compliance program. We also advise our readers that the point of a good compliance program is not to offer defenses or mitigation to prosecutors; the point is to prevent problems in the first place.

In Wichita, Kansas a notorious cardiologist, who has paid settlements to the government before, recently paid $5.8 million to settle claims regarding unnecessary cardiac procedures. While this significant settlement amount is noteworthy, Dr. Galichia also agreed to a three year exclusion, demonstrating that Three Times Is No Charm. The whistleblower case was brought in 2014, but Galichia had already paid $1.5 million in 2000 for services that were claimed at a higher level than documented, that were billed twice in some instances or were not provided. Bad as that was, in 2009 he paid again $1.3 million in a settlement for services not documented properly or not provided. The 2014 investigation of a whistleblower claim was conducted by the US Attorney’s Office, the DOJ Civil Division in conjunction with the HHS-OIG, the FBI, the Defense Health Agency for TRICARE, the Defense Criminal Investigative Service of the IG for the Department of Defense and the OIG of the Office of Personnel Management. Given the array of prosecutors, it is unclear whether this was a settlement of criminal charges (after two prior settlements) or civil charges only. He is out of the program for three years; but the case demonstrates the firepower the government has available to investigate and punish bad acts.
We have been named Leading Boutique Personal Service Health Law Firm of the Year, by Acquisition International, a UK based business magazine. They profiled us in their June 2019 issue. We appreciate their assessment of what we do and how we do it.
As the role of whistleblowers has become a real driver of false claims enforcement in the federal health programs, the government has recently taken to avoiding intervening in cases. In the early days of these cases, the whistleblower’s lawyers were very eager to have the government intervene to get the full power of the Department of Justice behind their case. That is no longer the case. More and more whistleblowers proceed with their cases even when the government chooses not to intervene and control the prosecution of the case. In the civil arena, the whistleblower stands to get even more money (25-30%) if they succeed than if the government does intervene (15-25%). Against this background, in a unanimous opinion, the United States Supreme Court held in Cochise Consultancy In v. US ex rel Hunt that the statute of limitations for false claims act challenges where the government does not intervene extends beyond the traditional six years, to a maximum of ten years. Until this opinion, only the government itself could claim the ten year limit. This means that the risk of actions today for behaviors before has increased and will remain in play going forward. The drumbeat for robust compliance is coming from all corners. All who submit federal health care claims should take heed!