Health Care Industry: Expect More DOJ Criminal Prosecutions on the Horizon

Today, I want to announce that we will be stepping up our use of one tool, and that is the fine work done by all of you in investigating and filing cases under the False Claims Act.

Through our Fraud Section, we will be committing more resources to this vital area, so that we can move swiftly and effectively to combat major fraud involving government programs.

Importantly, Ms. Caldwell encouraged whistleblowers/relators and their legal counsel to directly approach the Criminal Division when filing a qui tam suit:

To that end, when you are thinking of filing a qui tam case that alleges conduct that potentially could be criminal, I encourage you to consider reaching out to criminal authorities, just as you now do with our civil counterparts in the department and the U.S. Attorney’s Offices.

We in the Criminal Division have unparalleled experience prosecuting health care fraud, procurement fraud, and financial fraud. We can and we will bring that expertise to bear by increasing our commitment to criminal investigations and prosecutions that stem from allegations in False Claims Act lawsuits.

Coordination between the Civil Division and Criminal Division to investigate potential violations of the False Claims Act is nothing new; moreover, parallel criminal and civil fraud investigations have been a common DOJ practice for years. DOJ, however, is now mandating that all new qui tam filings are reviewed by the Criminal Divisions to determine if a parallel investigation is appropriate:

We in the Criminal Division have recently implemented a procedure so that all new qui tam complaints are shared by the Civil Division with the Criminal Division as soon as the cases are filed. Experienced prosecutors in the Fraud Section are immediately reviewing the qui tam cases when we receive them to determine whether to open a parallel criminal investigation.

Those prosecutors then coordinate swiftly with the Civil Division and U.S. Attorney’s Offices about the best ways to proceed in the parallel investigations. If a case raises potential criminal issues and needs investigative support, we have ready access to experienced fraud investigators from the FBI, HHS-OIG, the Postal Inspection Service and numerous other law enforcement agencies.

She also indicated that pursuing criminal charges against health care companies remains a primary objective of the Criminal Division:

We also are stepping up our prosecutions of corporations involved in health care fraud. Corporate health care fraud cases are a natural fit for us in light of our health care fraud expertise and our prosecutions of corporate cases in the financial fraud and foreign bribery arenas. We have numerous ongoing corporate health care fraud investigations, and we are determined to bring more.

The specter of greater criminal enforcement is something that should concern the health care industry.  According to a DOJ report released earlier this year, in fiscal year 2013, DOJ opened 1,013 new criminal health care fraud investigations involving 1,910 potential defendants, and a total of 718 defendants were convicted of health care fraud-related crimes during the year. Based on Ms. Caldwell’s comments, we should expect those numbers to rise in the coming years.

You can read the full text of Ms. Caldwell’s remarks here.

Arent Fox’s False Claims Act group will continue to monitor DOJ’s proclamations on government enforcement, as well as relevant False Claims Act enforcement actions, court decisions, and guidance. If you have any questions or need assistance, please contact David S. Greenberg, Jacques Smith, or Linda A. Baumann in our Washington, DC office; Connie A. Raffa in our New York office; Mary Carter Andrues or Thomas E. Jeffry Jr. in our Los Angeles office; or the Arent Fox professional who regularly handles your matters.