Representatives from the defense bar and the healthcare and life sciences industry recently met for the American Health Law Association’s Fraud and Compliance Forum. The conference programming covered an array of topics for practitioners, ranging from the practical risks of and guidance for using artificial intelligence (AI) in clinical operations to discussions of commercial reasonableness and fair market value in compensation.
Notably, however, federal government representatives were absent because of the ongoing shutdown. Despite not hearing from these representatives, there were important enforcement-related takeaways that stakeholders should keep in mind as enforcement agencies such as the US Department of Justice (DOJ) and the US Department of Health and Human Services Office of Inspector General (HHS OIG) are now more solidified and ready to pursue investigations.
What’s Old is New: Federal Enforcement Priorities Remain Consistent
Without federal government representatives, speakers at the Forum relied upon DOJ’s and HHS OIG’s prior public statements to predict the US administration’s focus on healthcare fraud enforcement. Rob DeConti, former chief counsel to the inspector general at HHS OIG, filled in as the Forum’s keynote speaker and noted that healthcare fraud enforcement is “evergreen” and all indications are that the US administration remains focused on pursuing investigations and enforcement actions.
DeConti highlighted the announcement of DOJ and HHS OIG’s Healthcare Fraud working group and the enforcement priorities announced back in July, including potential fraud and other wrongful conduct associated with the Medicare Advantage program, drugs and biologics pricing, kickbacks, defective medical devices, and manipulation of Electronic Health Records.
DeConti’s remarks also touched on topics that have been consistent themes for the defense bar and healthcare and life sciences organizations for the past several years. DOJ’s announcement of a Healthcare Fraud Data Fusion Center, a hub of government data and collaboration with the FBI, HHS OIG, and other federal agencies, demonstrates the government’s continued focus of using data analytics and AI tools to detect, investigate, and prosecute healthcare fraud.
There is a continued focus of enforcement efforts related to medical billing and coding, especially in the context of Medicare Advantage and risk adjustment practices. Cybersecurity, beyond more express requirements for recipients of federal grants or contracts, is likely to be a new frontier of healthcare fraud enforcement.
Ultimately, the takeaways for stakeholders were clear (1) DOJ, HHS OIG, and other agency partners remain committed to robust healthcare fraud enforcement, and (2) stakeholders in the areas identified by the US administration should be prepared for increased scrutiny.
Medicaid Fraud Control Units Primed to Take Enforcement Lead
A highlight of the Forum was a panel featuring Assistant Attorney General for the Maryland Medicaid Fraud Control Unit Raja Mishra and Division Chief at Medicaid Fraud Division, Massachusetts Attorney General's Office Kevin Lownds. Regardless of the US administration’s new (or not-so-new) enforcement priorities, Medicaid Fraud Control Units (MFCUs) across the country are primed and ready to pursue their enforcement priorities.
A key industry the panelists highlighted was nursing homes. Both representatives explained that the nursing home investigations have become the top focus on the civil side of the MFCUs. They noted that their focus was the quality of care delivered at nursing homes in their states and not necessarily high-dollar settlements.
Further, while federal investigations are often reliant on tools like the False Claims Act that do not neatly map onto quality-of-care investigations, MFCUs have more enforcement tools, such as abuse and neglect statutes, to initiate investigations and more flexibility to negotiate corporate integrity agreements.
The representatives also highlighted behavioral health and medical transportation as areas that are rife with fraud and abuse. In particular, Applied Behavior Analysis (ABA) therapy, most often provided to children with autism spectrum disorder, has become a particular focus for the Massachusetts MFCU. Given that most state Medicaid programs cover ABA and there is often high reimbursement rates associated with the therapy, this will likely be an area of focus for MFCU enforcement, and providers should plan accordingly.
Key Takeaways
Even without government representatives, the enforcement takeaway from the Forum for stakeholders was that the DOJ and HHS OIG remain focused on pursuing healthcare fraud. The US administration’s prior public announcements should be taken seriously as a roadmap of the industries that are going to be the specific focus of investigative efforts.
With that in mind, stakeholders should also be aware that state-led MFCU investigations are also on the rise and will likely increase as federal enforcement priorities evolve. Those investigations are just as complex and challenging and require a swift and strategic response. Stakeholders should be prepared for a high level of enforcement going forward.
For additional insight from this conference, see Meredith Auten and Scott McBride’s presentations on the False Claims Act and Artificial Intelligence Compliance and Enforcement respectively.