The HHS OIG recently published a new Fraud Risk Indicator for False Claims Act (FCA) settlements on the risk spectrum for the first quarter of federal fiscal year 2019. Characterized as “an assessment of future risk posed by persons who have allegedly engaged in civil healthcare fraud,” the Fraud Risk Indicator purports to increase transparency by making public where an FCA defendant falls into one of five color-coded categories on a risk spectrum: Highest Risk – Exclusion (red), High Risk – Heighted Scrutiny (orange), Medium Risk – CIAs (yellow), Lower Risk – No Further Action (green); Low Risk – Self-Disclosure (blue).
Categorized as “high risk” are entities that “refused to enter CIAs sufficient to protect Federal healthcare programs.” The publication of a list of entities that decline to enter into a CIA—an action that has not been compelled by statute or regulation—raises a number of questions concerning the rights of providers that disagree with the OIG’s fraud risk assessment and those who object to entering into a CIA. In an article published by Law360, partner Howard Young and associate Jacob Harper take a deep dive into the OIG’s use of its permissive exclusion authority as the basis for the Fraud Risk Indicator and its apparent reassertion that a CIA should be the presumptive outcome of most FCA settlements.