Recently, representatives from the United States Attorney’s Office for the Northern District of Georgia, United States Attorney’s Office for the District of New Jersey, and Medicaid Fraud Control Unit (MFCU) for the Office of the Attorney General of New York spoke to industry participants at the ACI 7th Advanced Forum on Sunshine Act, Open Payments, and Aggregate Spend Compliance. The robust dialogue included several key takeaways that health care entities should note:
Data Mining. As we previously discussed here, the government uses data mining and other analytics to assist in evaluating and developing cases, such as matters brought to the government’s attention by a qui tam relator or in connection with the review of a particular industry. Although the MFCU teams are prohibited from proactive data mining not associated with a particular matter or investigation plan, federal investigators are encouraged to use the data to proactively identify potential fraud and abuse. According to the panelists, the government has used claims data for data mining and analytics for some time, which will play “an even greater role” in investigations moving forward. Similarly, use of the Open Payments data will continue to increase as the offices become more skilled at working with this data.
Pending Qui Tam Suits. According to the MFCU representative, there are over 300 qui tam suits currently pending in New York, each of which the MFCU team is obligated to investigate. Data, including the Open Payments data, is one way in which the government evaluates whether a suit is meritorious. One “red flag” for the government would be a payment that the government knew was provided, but was not disclosed on Open Payments. One speaker further stated that these cases have resulted in deterrence within the industry because, although there are some “big cases” currently pending against pharmaceutical and medical device companies, a decrease in suits against the industry have been decreasing overall.
Individual Enforcement. Citing the recent convictions against health care professionals (HCP) in New Jersey which resulted in prison sentences (discussed here), the government panelists confirmed that they actively consider whether HCPs and other individuals involved in a fraud scheme should be pursued. Criminal prosecutors are more likely to pursue individuals than their civil counterparts, which tend to focus on companies. This is because the primary objective of the civil prosecutors is to return funds to the Medicare trust.
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