Investigation, negotiation and resolution of a False Claims Act Case
As part of the government’s healthcare fraud enforcement efforts, physicians and other healthcare professionals are routinely subject to aggressive audits, investigations, and civil and criminal penalties – often in relation to violations of the False Claims Act (FCA). The FCA is a federal law which imposes liability on individuals and providers who defraud government programs such as Medicare, Medicaid and Tricare. Any physician or healthcare entity can become liable when a false or fraudulent claim is submitted for payment or approval from the government, regardless if the submission occurs knowingly or the result of lack of due diligence. For any healthcare provider or organization, knowing how a False Claims Act case works is crucial in protecting your business and reputation.In this blog, our Houston healthcare lawyers explain the anatomy of a False Claims Act case, from the investigation phase to negotiation and resolution.
The Investigation Phase
Generally, FCA investigations progress for quite some time before the target of the investigation learns of the investigation. Before an investigation becomes known publicly, the Department of Justice (DOJ) or OIG, AG or TDI, carefully vets billing irregularities and qui tam complaints, evaluating certain criteria to determine whether or not to pursue an FCA case. The vetting process assesses a number of different factors, including:
- Is there a clear violation of condition of payment?
- Was the government damaged, and to what degree?
- Is there sufficient proof supporting the fraud?
- Is there personal knowledge of facts involving the FCA violation? (Did the provider act knowingly?)
- Should the physician or healthcare provider have known about the violation?
- Are tainted claims involved? (i.e. fraudulent claims resulting from improper kickbacks or improper referrals or relationships, even if billing is proper)
Many targeted healthcare professionals may become aware of an investigation through unannounced interviews or questioning, informal requests, subpoenas, or Civil Investigative Demands (CIDs) which seek documentation and testimony for an FCA case.
The government’s top priorities in an FCA investigation often include:
- Assessing strengths and weaknesses of the case
- Making the government whole (correct fraudulent payments through fines or penalties)
- Deterring fraud by illustrating seriousness of FCA violations
- Determine whether or not to seek exclusion from government programs (i.e. Medicare, Medicaid or Tricare)
- Penalize misconduct by individuals, including civil damages or even criminal liability
The Negotiation & Resolution Phase
Whether it has been made clear that you are the target of an investigation or not, if the DOJ, OIG or other government agency comes knocking on your door with questions, a subpoena or a CID – it is critical to speak with an experienced healthcare law attorney who can carefully evaluate demands, structure responses, protect your rights and take appropriate measures to:
- Interpret government demands
- Maintain compliance and cooperation
- Avoid missteps that may negatively impact your status in government’s eyes
- Conduct internal audits and self-disclosure
- Maintain records of the investigation process, interview notes, and witness log
- Establish communication and credibility with the government
- Handle discussions with federal prosecutors
- Work toward resolution through negotiation
- Mitigate the impact of demands and settlements when appropriate
At Hendershot Cannon & Hisey, our healthcare fraud defense lawyers meticulously evaluate all matters surrounding a Federal False Claims Act case. We effectively respond to investigations and successfully litigate actions pursued by the government, or whistleblowers in qui tam lawsuits. In instances in which civil liability is indicated, we are skilled at negotiating and mitigating the damages and possible exclusions of the government’s demands.
Dealing with Violations of the False Claims Act
In any healthcare fraud matter, acting sooner rather than later – and with the help of an experienced legal team – can make all the difference. Our health care fraud defense lawyers are readily available to discuss your needs. Call (713) 909-7323 to schedule a confidential consultation, or if you prefer contact us online.