For healthcare companies, criminal enforcement is a primary area of risk, given the opportunity and motivation to commit healthcare fraud and abuse. The Government Accountability Office published a recent report discussing criminal enforcement efforts in healthcare and the approach of DOJ and the U.S. Department of Health and Human Services Office of Inspector General (HHS-OIG). It’s an interesting read…
Can federal prosecutors bring criminal charges against healthcare companies?
In a word, yes. A question that more and more healthcare executives are grappling with is whether they will be criminally charged in federal court as a result of their business decisions. The source of these worries stems from a recent announcement by the Office of the Attorney General on October 28, 2021. Red flags went up and companies began to take notice that a white hot spotlight is being focused on fraud in companies. Many assumed that only companies like Enron would face criminal charges but it turns out there has been much more aggressive targeting of healthcare industry practices than many people realize. Whistleblowers and diligent government agents have been focusing on fraud issues for years, but prosecutors now appear to be willing to file charges against individuals outside of corporate governance roles such as auditors or directors.
U.S. Department of Justice Criminal Division’s Anti-Kickback Statute
The Civil and Criminal Penalties for Individuals and Corporate Entities That Participate in Kickback Schemes Under Federal Law. The Anti-Kickback Statute makes it illegal to knowingly solicit, offer, receive or pay any remuneration to induce or reward referrals of items or services covered by Medicare, Medicaid or other federally funded healthcare programs. Potential civil and criminal penalties are substantial. Moreover, criminal charges may result in imprisonment as well as disqualification from doing business with federal health care programs such as Medicare and Medicaid.
U.S. Department of Justice Criminal Division’s False Claims Act
The Department of Justice (DOJ)’s False Claims Act unit, a part of its Criminal Division, brings cases against individuals and corporations that defraud state, local and federal governments by submitting false claims to obtain funds under contracts. Recently, DOJ has focused on healthcare fraud cases.
Healthcare Fraud Investigations by the U.S. Department of Health and Human Services Office of Inspector General (HHS OIG)
Criminal enforcement is one of the OIG’s most powerful tools in combatting health care fraud and abuse. When an individual or company commits healthcare fraud, they not only steal from taxpayers but also from those who need access to quality care—our nation’s sickest patients. And with the nation reeling from COVID, attention is now being focused on healthcare fraud. In fact, over 1,000 individuals have been charged criminally by HHS OIG since 2006. The government has also recovered more than $5 billion dollars in fines and civil settlements during that same time period. Included among these recoveries were penalties related to HMOs [health maintenance organizations], Medicare/Medicaid providers and beneficiaries as well as drug manufacturers; both kickbacks and off-label promotion are generally considered criminal violations.
Ethics Training is a Defense
Learn how to protect your organization. The healthcare industry is under increased scrutiny by government agencies and law enforcement. Most notably, pharmaceutical companies have been caught up in a series of corporate criminal enforcement actions. As a healthcare company, what can you do to ensure that your organization doesn’t fall prey to charges of corporate criminal misconduct? One thing you can do is address ethics training as a key component of your compliance program.
Is ethics training just a checkbox for compliance or better used a way to move the needle of behavior in a positive manner and also provide a legal defense?
