President Biden announced at the end of last year that he intended to nominate Xaiver Becerra as the Secretary of the Health and Human Services Department. Becerra was most recently the attorney general of California and was known for an aggressive approach as a prosecutor. Legal observers have suggested that Becerra will bring that prosecutorial experience to HHS and work closely with the Department of Justice to “boost health fraud enforcement efforts.”
In other words, the government is going to target more doctors and hospitals for criminal and civil investigations, with an eye towards obtaining criminal convictions or civil penalties such as fines and restitution. The government believes that the COVID-19 pandemic has created new opportunities for potential fraud, such as the stimulus money allocated to doctors and hospitals to address the public health crisis. HHS states that it has paid over $1.5 trillion to public and private healthcare providers, and under Becerra, the feds will likely increase oversight to ensure that this money is being spent the way the feds want it to be spent.
One area the government is focusing on is policing reimbursements for doctors and providers who submit claims to Medicare and other federal healthcare programs. As part of the government’s COVID-19 relief legislation, many of these healthcare programs created new emergency billing codes and funding mechanisms to give providers more flexibility during the pandemic. In some cases, however, individuals have taken advantage of that flexibility to submit false claims using the COVID-19 billing codes, as the feds in New York have alleged in an indictment against two pharmacy owners.
Some legal observers have predicted that HHS will also work with the Federal Trade Commission to more closely scrutinize hospital mergers and the increasing costs of healthcare. During the COVID-19 pandemic, many hospitals and healthcare providers have merged, and these mergers will likely be reviewed by the feds. These matters could be taken in anti-trust litigation and some mergers may be blocked.
While we can all agree that the government has an important role in preventing healthcare fraud, we should scrutinize government enforcement efforts when they cast a wide a net. Too often, innocent individuals are charged, or cases that should be resolved through civil penalties become criminal prosecutions. Doctors and hospitals aren’t necessarily committing a crime when they allocate relief funds in a different way than the government might prefer. Also, healthcare regulations are complex, and not every doctor or provider has an in-house attorney to ensure compliance with the network of regulations, like many hospitals do. Our firm has prepared a video describing the various laws the government relies in pursuing healthcare fraud charges and potential defenses in such cases.