The lawyers at Bass, Berry & Sims send our condolences to the family and friends of Jack Boese. We are grateful for his towering contributions to the development of FCA jurisprudence. We will miss his smile and larger-than-life personality which never left anyone in doubt as to Jack’s views on any subject.
It is safe to say that 2020 has been nothing short of challenging for the healthcare industry, especially when it comes to maintaining data privacy and security. Among countless other areas, the impact of COVID-19 has resulted in a spike in telehealth options, creating more vulnerabilities for the security of patient data. More than ever, healthcare professionals must prioritize data security and proactively assess areas of risk within their company’s operational structure.
In this webinar available now on demand, Bass, Berry & Sims attorneys are joined by professionals in the healthcare field to discuss best practices, new enforcement updates, and COVID-19-related developments to help protect your company’s data, maintain compliance with government agencies, and respond accordingly if and when a breach occurs.
This complimentary webinar covers the following topics:
- The Basics – Beginner HIPAA knowledge for those new to this area of work, including helpful resources and best practices.
- Enforcement Actions – Government agency developments and updates on the current regulatory climate.
- Pandemic Pitfalls – Impacts resulting from COVID-19 and how to spot bad actors taking advantage of vulnerabilities.
Who Should Attend?
- In-house legal counsel.
- Privacy officers.
- Compliance officers.
- C-level executives, consultants and principals in the healthcare industry.
This program has been approved for General Tennessee CLE credit. Certificate of completion and other necessary application forms provided for use in other jurisdictions.
Please join us for the 6th Annual Nashville Healthcare Fraud Conference hosted by Bass, Berry & Sims and the Tennessee Hospital Association. Because we are unable to provide an in-person forum due to ongoing concerns resulting from the COVID-19 pandemic, we are converting the conference to a virtual platform.
We are excited about this year’s complimentary CLE program, which will provide the same caliber of practical advice, insight into significant fraud and abuse issues facing healthcare professionals, and thoughtful discussion from industry panelists for which this conference is known.
Additionally, for the first time, we are expanding the conference to two days with the first day focused on providing a primer, covering healthcare fraud and abuse matters for attorneys newer to the industry or practice. Topics will include conducting effective internal investigations and an overview of the False Claims Act.
The second day will follow our traditional format of providing practical tips and takeaways regarding healthcare fraud enforcement, including:
- Our annual review of the most important healthcare fraud issues from the prior year.
- Effective management of healthcare investigations during the COVID-19 pandemic.
- How the COVID-19 pandemic has impacted the government’s perspective on healthcare fraud matters.
- Implications and potential risk exposure stemming from CARES Act funding.
Click here to view the current agenda.
At the conclusion of the conference on December 3, we will be offering breakout sessions to further the dialogue on subject matters important to you. Please be on the lookout for communications regarding breakout session details.
Two partnerships and infighting between relators recently produced a series of difficult questions addressed by the U.S. Court of Appeals for the Third Circuit in In re Plavix Mktg., Sales Practices & Prod. Liab. Litig. (No. II). Three individuals formed a limited liability partnership, JKJ, to bring a qui tam action against Sanofi-Aventis and Bristol-Myers Squibb, pharmaceutical companies that developed and marketed the anti-clotting drug Plavix.
After JKJ filed its qui tam complaint, however, its members had a falling out. One member left the partnership, and the two remaining members created a new partnership, also named JKJ, with a new third member. The old JKJ partnership was dissolved, and the new JKJ partnership filed an amended qui tam complaint.
The defendants moved to dismiss the amended qui tam complaint based on the False Claims Act’s (FCA) first-to-file bar. The first-to-file bar provides that “[w]hen a person brings an action under this subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” The defendants argued that filing the amended complaint violated the first-to-file bar because the new JKJ partnership was a new party to the action. Continue Reading Corporate Maneuvering Leads to Thorny First-to-File Bar Issues
In our previous article, we outlined steps companies can take now to protect themselves during later government investigations and enforcement actions related to COVID-19 relief funding. These steps include: leverage compliance resources, document the application/funding process, document how money is used, schedule an interim internal review, and respond to employee complaints. In this article we focus specifically on the health care industry and how companies can protect against inevitable government scrutiny after receiving COVID-19 relief funding.
The health care industry must be particularly vigilant about protecting against future enforcement risks because it is a highly regulated industry facing an enforcement perfect storm—fast cash, poor guidance and retrospective review. Congress allocated $175 billion to the U.S. Department of Health and Human Services (HHS) through the Coronavirus Aid, Relief and Economic Security Act Provider Relief Fund (Relief Fund). To support an industry hurt by COVID-19-related patient surges, stay-at-home driven closures and elective procedure treatment delays, HHS adopted a strategy to release relief funds quickly and perform reconciliation on the back end. As a result, HHS released what it touted as “no strings attached” relief funds through a series of general and targeted allocations each with a list of somewhat vague terms and conditions. The only other guidance available were application instructions, where applicable, and a continuously evolving set of frequently asked questions.
Of course, no government funding comes with “no strings attached.” The government inevitably will review whether recipients of HHS relief funds met the eligibility requirements and complied with the terms and conditions for using relief funds. Given that any deliberate omission, misrepresentation or falsification of information related to the HHS relief funds comes with potentially severe consequences—including but not limited to revocation of Medicare billing privileges; exclusion from federal health care programs; and/or the imposition of fines, civil damages and/or imprisonment—health care companies should consider the following steps to support their acceptance and use of the funds:
This article is the first in a series addressing what companies can do now to protect themselves during later government investigations and enforcement actions related to COVID-19 relief funding. In this article, we provide general practice tips applicable to all industries. Future articles will target compliance issues related to specific areas and industries—healthcare, finance, government contracting, and labor and employment—and what companies can do to reduce the risk when accepting government aid. Don’t miss the second article in this series that discusses what companies can do now to protect themselves during later government scrutiny related to COVID-19 relief funding.
The government has distributed an unprecedented amount of money in response to the COVID-19 pandemic. Under the Coronavirus Aid, Relief and Economic Security (CARES) Act, for example, the government is providing over $1 trillion through loans, grants and tax credits. Companies in the healthcare and financial industries, government contractors and many other businesses have all received government help.
The government, to its credit, has moved quickly to make funding available to companies in need. As a result, many government agencies have shifted their focus to responding to the pandemic and distributing allocated funds—with all requests and distributions of money completed as quickly as possible.
The roller coaster ride of U.S. ex rel. Ruckh v. Genoa Healthcare, LLC continues. In a previous post, we wrote about the staggering $348 million judgment entered following a jury verdict against a management company and skilled nursing facilities (SNFs) owned by Consulate Health Care. The jury found the defendants committed False Claims Act (FCA) violations by artificially inflating Resource Utility Group (RUG) levels for Medicare therapy patients and falsely certifying that the SNFs had created timely and adequate patient care plans required by Medicaid. Following the judgment, defendants filed a motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b), and as we noted here, the district court judge took the extraordinary step of overturning the judgment on materiality grounds.
In the latest turn, the Eleventh Circuit reversed the district court’s decision in part and reinstated most of the jury verdict. While the district court, in applying Escobar’s materiality standard, had found “an entire absence of evidence” of materiality, the Eleventh Circuit reached the opposite conclusion, holding that “plain and obvious” evidence of materiality supported a jury verdict of $85 million in single damages. The appellate court ordered the district court to enter judgment in treble that amount, plus per-claim statutory penalties under the FCA. That comes to over $255 million.
On June 25, the U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal with prejudice of a qui tam False Claims Act (FCA) suit alleging certain physician compensation arrangements at Trinity Health violated the Anti-Kickback Statute (AKS) and Stark Law.
The relator, a former surgeon at one of Trinity’s hospitals, alleged the following:
- Trinity paid five of its highest-earning physicians above fair market value by compensating them in excess of 90th percentile compensation for their specialties at levels not justified by their personal productivity.
- The high compensation generated practice losses for Trinity absent taking into account the physicians’ downstream referrals to the health system.
- As a result of the physicians’ compensation methodology, they performed unnecessary surgeries to inflate their compensation.
- Trinity opted not to renew the relator’s contract because he complained about these allegedly-unnecessary surgeries.
Earlier this month the Northern District of California unsealed a criminal complaint filed against the president of a medical technology company, charging him with one count of conspiracy to commit healthcare fraud and one count of securities fraud. This case is one of the Department of Justice’s (DOJ) first notable healthcare fraud prosecutions related to the COVID-19 pandemic and is the government’s first COVID-19-related prosecution for securities fraud.
Arrayit Corporation, a California-based medical technology company providing allergy testing, purported to use a “microarray technology,” which the company likened to the headline-making Theranos nanotainer technology, to test finger-prick drops of blood placed on a paper card and mailed to Arrayit’s laboratory. Defendant and company President Mark Schena describes himself as the “Father of Microarray Technology,” and Arrayit touted through social media that its microarray testing can use a drop of blood 250,000 times smaller than that used by Theranos.
While the government is writing checks to companies to cope with recent pandemic losses, it simultaneously updated its internal guidance for scrutinizing a company’s corporate compliance program. Earlier this week, the Department of Justice (DOJ) issued to prosecutors an update to its guidance document for the “Evaluation of Corporate Compliance Programs.” DOJ counsel has long considered the existence and adequacy of a company’s corporate compliance program when determining whether, and to what extent, charges should be brought against that company, as well as how investigations should be resolved.
This guidance document, originally published in 2017, assists government counsel with that evaluation process. While primarily intended for use in the criminal context, the same guidance could undoubtedly be considered during a civil investigation against a company, such as in a False Claims Act investigation. The guidance document and its updates are excellent resources for a company to use in the company’s ongoing evaluation of its compliance program.
Purposefully tailoring the compliance program to your company. Many DOJ updates reinforce the notion that a company should create a corporate compliance program that is tailored to that specific company, based upon its evaluation of its particular risks and anecdotes. For instance, the update clarifies that government counsel should consider “the company’s size, industry, geographic footprint, regulatory landscape, and other factors, both internal and external to the company’s operations, that might impact its compliance program.” And when evaluating whether the compliance program is well designed for a particular company, government counsel is directed “to understand why the company has chosen to set up the compliance program the way that it has, and why and how the company’s compliance program has evolved over time.”