Feds to increase exclusion and civil monetary penalty enforcement cases

When it comes to exclusion and civil monetary penalty cases, the federal government is preparing to take an even harder line than in the past. During the recent Health Care Compliance Association’s Healthcare Enforcement Compliance Institute, Gregory Demske, chief counsel at the Health and Human Services Office of Inspector General, told an audience his agency expects to increase the number of cases it initiates, according to a recent article in Bloomberg BNA.

The news should come as no surprise to healthcare practitioners. Earlier this year, OIG created a new litigation team to exclusively work on cases brought under the civil monetary penalties law, the False Claims Act, the anti-kickback statute and the OIG’s authority to exclude providers from federal health programs.

While the secretary of HHS is authorized to seek exclusions and civil monetary penalties (CMP) under the Social Security Act, most of this authority has been delegated to OIG. OIG can seek CMP for, among other things, presenting fraudulent medical claims for reimbursement by government programs, violating the anti-kickback statute by paying to induce referrals or getting paid for referrals of medical procedures covered by government programs such as Medicare and Medicaid, presenting claims that the physician knows they can not be reimbursed for, and negligently failing to provide appropriate emergency medical services and treatment.

According to the Bloomberg article, Demske also said his office supports the idea of holding individuals responsible, along with the organizations for which they work. In September, we wrote about the so-called “Yates  memo,†introduced by Deputy Attorney General Sally Quillian Yates, which called for high-ranking individuals, and not just the companies they run, to be held accountable for wrongdoing.

One example of holding individuals accountable can be seen in the sentencing earlier this year of Charlie Chi. The former president and CEO of OtisMed Corporation received two years in prison for intentionally distributing a medical device used in knee replacement surgery, despite the fact that the Food and Drug Administration had denied the company’s application for marketing clearance.

In addition, the BNA article noted that OIG “remains committed†to using data analytics to identify inappropriate payments. As we wrote in July, the system is being used to analyze provider billing and beneficiary utilization patterns to identify potentially fraudulent claims before they are paid, thus eliminating the need, in some cases, to chase after the money.

The government’s crackdown on healthcare fraud is nothing new. But enforcement efforts against providers are on the rise, and likely to continue to increase well into the future. Providers would be well-advised to make sure their practice is in compliance and that they have procedures in place to ensure against fraudulent activity.

The Health Law Offices of Anthony C. Vitale can assist with the creation of compliance procedures and advise practitioners who may find themselves the target of a healthcare fraud investigation.