Major enforcement news was released today, Wednesday, June 29, 2022, for medical professionals and anyone working in or around the health care space in Maine, New Hampshire, and Vermont.
The United States Department of Justice (DOJ) announced the formation of a new "Strike Force" to investigate physicians, pharmacists and medical professionals related to allegations of health care fraud and diversion in New Hampshire, Maine, and Vermont. The task force will contain representatives from United States Attorney’s Offices in Maine, New Hampshire, and Vermont, as well as the Health Care Fraud Unit in the Criminal Division’s Fraud Section based in Washington, D.C., and law enforcement partners at the U.S. Department of Health and Human Services Office of the Inspector General (HHS-OIG), U.S. Drug Enforcement Administration (DEA), and the Federal Bureau of Investigation (FBI).
This regional strike force model has been used by the DOJ in other jurisdictions, which resulted in significant enforcement activity – mostly against providers – including investigations, prosecutions, and seizure of assets.
Unfortunately, if history is a guide, the government’s investigations may go beyond intentional wrongdoers and may sadly extend to other legitimate businesses operating in this space and doing nothing untoward.
The Northern New England task force will be eager to demonstrate its prowess in the region in the near term. The task force will likely harness a robust in-house data analytics team to evaluate prescribing practices, including evaluating outliers. The task force’s presence will likely also lead to an increased focus on state and federal false claims act investigations.
Now is a good time for providers and prescribers to review record keeping and compliance practices.
Relatedly, this week in Xiulu Ruan v. United States, the Supreme Court clarified and strengthened the amount and type of proof required to convict a prescriber of distributing controlled substances for other than a legitimate medical purpose or outside the usual course of professional medical practice. Now, the government must face the tough task of proving beyond a reasonable doubt that a prescriber knowingly or intentionally acted in an unauthorized manner when making a medical decision. A good defense team will need to understand Ruan and its likely effect on false claims act litigation and criminal prosecutions.