DOJ Intensifies Focus on Healthcare Fraud

If anyone wondered which white-collar crime issues would attract special Department of Justice interest during the Trump administration, they now have a tentative answer. In July 2017, 412 individuals in 41 different parts of the country were charged with $1.3-billion worth of health care fraud schemes involving false billings to Medicare and Medicaid, as well as overprescribing opioids and other dangerous narcotics. In a parallel action undertaken at the same time, the Department of Health and Human Services (HHS) launched suspension actions against 295 individual providers including doctors, nurses and pharmacists.

The medical profession, hospitals and pharmacies, and the pharmaceutical industry itself are on notice: They are attracting special investigative attention by government gumshoes and prosecutors in a widespread crackdown on health care fraud.

While the Obama and George W. Bush administrations each launched investigations into various over-billing and over-prescribing practices, the prosecutions were part of a wider front launched against various white-collar crimes. But the Trump administration is demonstrating less interest in going after activities such as insider trading, money laundering and garden-variety business fraud, instead focusing much more heavily on wrong-doings in the health care sector. This makes sense because so much of it involves government money.

If you get caught up in it, say nothing

Health care fraud is big business in the United States, costing an estimated $100-billion annually. A 1996 law created the Health Care Fraud and Abuse Control Program, and in 2009 then-Attorney General Eric Holder and HHS Secretary Kathleen Sebelius set up a task force to uncover and prosecute health care fraud.

But the new emphasis means that many people and institutions, from Big Pharma to small town nurses, may well be drawn into an investigation in situations where they haven’t done anything wrong, but rather because they were in the wrong place at the wrong time. If this happens – and it’s probably a matter of ‘when’ rather than ‘if’ – people need to know what to do.

The first thing is to call an attorney. Speak with no police officers, FBI agents or other government investigators without being represented by legal counsel at the meeting. There is a simple rule of thumb: No matter what an agent may say or how casual their attitude might seem when they walk into your office, the FBI is not your friend. Say nothing without a lawyer being present.

Sometimes law enforcement officials will conduct a search, sometimes referred to as a “dawn raid,” of homes and businesses. If a search warrant is produced, it is important to comply and also take immediate steps to protect your legal interests. If the search occurs at your office, for instance, your staff should be trained and briefed on how to proceed. First of all, the credentials of the officials and the warrant should be carefully examined. It is critical that counsel be called immediately. The law enforcement officers should be escorted to an empty conference room and requested to wait until counsel arrives. A company representative should shadow the searching officials while the search takes place. No documents (including electronic documents and communications) should be destroyed until counsel is consulted. Sometimes a warrant authorizing the search can be challenged in court. 

Often, the attorney called first handles a company’s general business matters, or is an executive’s personal lawyer. If they do not handle white collar crime files, after representing you during the initial meeting with an investigator ask that they refer the matter to an attorney who does. Defending against white collar crime investigations and charges is a nuanced practice requiring knowledge of both the law and the tactics prosecutors use to get the target of an investigation to reveal things that may seem innocent at the time but sound incriminating when raised later in a criminal trial.

For institutions and individuals who find themselves ensnared in a health care fraud investigation, getting out of the trap being laid by prosecutors requires working with a lawyer steeped in the defense of white collar crime suspects and defendants. Especially in cases where a client did nothing wrong, moving quickly and adroitly to blunt the prosecution’s case as it’s being built is essential to avoiding a lengthy and costly trial if possible – and, if not, avoiding steep fines and possible prison sentences.

Jesse has represented clients accused of healthcare and other white-collar criminal offenses in federal and state courts around the country. Reach him at 703.8868.1943 or by email at jesse@binnall.com.