Over the course of a single week in June 2015, the Department of Justice (“DOJ”), in conjunction with the Department of Health and Human Services (“HHS”), conducted what Attorney General Loretta Lynch called “the largest criminal health-care fraud takedown in the history of the Department of Justice.” Two-hundred and forty-three individuals—including doctors, nurses, and other licensed medical professionals—were arrested and chargedfor allegedly billing Medicare for close to $712 million worth of patient care that was never given or that was medically unnecessary. The charges included health-care fraud,conspiracy to commit health-care fraud, various violations of anti-kickback statutes, money laundering, and aggravated identity theft, among others.

The investigation and arrests were the result of a coordinated government effort, spear-headed in large part by the Medicare Fraud Strike Force—an operation of the Health Care Fraud Prevention & Enforcement Action Team (“HEAT”) of the DOJ and HHS—which, since its formation in 2007, has charged over 2,300 individuals for purported false billings to Medicare. According to the DOJ, more than 900 law enforcement officials took part in the arrests, which occurred over three days in 17 cities across the country.

Such a large-scale, multi-district crackdown reflects the DOJ’s renewed focus on prosecuting health-care related fraud. Indeed, after the passage of the Affordable Care Act (“ACA”) in 2010, federal law enforcement and prosecuting agencies were provided with an additional $350 million to assist in the prevention, investigation, and prosecution of health-care fraud-related offenses. This influx of federal funds, according to HHS Secretary Sylvia Burwell, has “allowed the Strike Force to expand” and new tools, such as “enhanced screening and enrollment requirements, tough new rules and sentences for criminals, and advanced predictive modeling technology” have contributed to the rise in criminal prosecutions for health-care fraud.

As funding for the investigation and prosecution of health-care fraud has increased, advances in technology and investigatory techniques have likewise been on the rise. As Assistant Attorney General Leslie R. Caldwell of the DOJ’s Criminal Division recently made clear, thanks to increased funding, the DOJ is now able to “obtain and analyze billing data in real-time” and to“target hot spots—areas of the country and the types of health care services where the billing data shows the potential for a high volume of fraud” which has “spe[d] up [the Government’s] investigations” into health-care fraud-related offenses.

In addition to the increased scrutiny given to all health-care professionals in recent years, physicians are now receiving particular attention. In early June 2015, just weeks before the DOJ and HHS’s historic crackdown, HHS’s Office of Inspector General issued a “Fraud Alert,” warning physicians about the federal anti-kickback statute and putting physicians nationwide on notice that violation of federal health-care fraud statutes will not go unpunished.

As recent events have made abundantly clear, the federal government, now armed with significantfinancial resources, has increased its focus and attention on the investigation and prosecution of health-care fraud-related offenses across the country.This funding has had a direct effect on advancements in technology used to investigate violations of federal health-care fraud statutes. Accordingly, federal law enforcement, in conjunction with the Criminal Division of the DOJ, are now more adept than ever at targeting individuals for prosecution and ultimately bringing federal charges.

However, an over-zealous focus on health-care fraud prosecutions can result in the prosecutorial overcharging of certain offenses and the over-inclusion of individuals in federal indictments. A nimble and capable defense involves evaluating the particular health-care fraud statutes at play and a thorough investigation of the individual’s role in the alleged scheme. Given the enhanced attention on health-care fraud offenses and the considerable resources at federal prosecutors’ disposal, a comprehensive defense has never been more necessary.

Sources:

• Department of Justice, Office of Public Affairs, Press Release, “National Medicare Fraud Takedown Results in Charges Against 243 Individuals for Approximately $712 Million in False Billing, June 18, 2015.
• Department of Health and Human Services, Office of Inspector General, Fraud Alert, “Physician Compensation Arrangements May Result in Significant Liability,” June 9, 2015.