Under a new Department of Justice (DOJ) process for qui tam complaints, all new civil complaints are reviewed by the criminal division as soon as they are filed to determine if a parallel criminal investigation should also be opened. Assistant Attorney General for the Criminal Division Leslie R. Caldwell announced the change during his remarks at a recent Taxpayers Against Fraud Education Fund conference. Qui tam relators, commonly known as whistleblowers, have always been a large part of the DOJ’s civil fraud-fighting efforts, and this change will allow for criminal investigations to commence immediately if criminal activity is alleged in a False Claims Act (FCA) lawsuit. For providers such as laboratories, the risk of serious consequences stemming from allegations in a civil FCA whistleblower’s lawsuit have just increased considerably. The investigators working in the criminal division are experienced in prosecuting the most complex fraud cases and bring a wealth of practical experience and knowledge, resources, and sophisticated investigatory tools to bear on these cases. For instance, of the 100 attorneys working in the division, 40 are dedicated to the health care fraud unit, making it “the largest and most prolific unit of criminal prosecutors dedicated solely to health care fraud […]
Under a new Department of Justice (DOJ) process for qui tam complaints, all new civil complaints are reviewed by the criminal division as soon as they are filed to determine if a parallel criminal investigation should also be opened.
Assistant Attorney General for the Criminal Division Leslie R. Caldwell announced the change during his remarks at a recent Taxpayers Against Fraud Education Fund conference. Qui tam relators, commonly known as whistleblowers, have always been a large part of the DOJ’s civil fraud-fighting efforts, and this change will allow for criminal investigations to commence immediately if criminal activity is alleged in a False Claims Act (FCA) lawsuit.
For providers such as laboratories, the risk of serious consequences stemming from allegations in a civil FCA whistleblower’s lawsuit have just increased considerably. The investigators working in the criminal division are experienced in prosecuting the most complex fraud cases and bring a wealth of practical experience and knowledge, resources, and sophisticated investigatory tools to bear on these cases. For instance, of the 100 attorneys working in the division, 40 are dedicated to the health care fraud unit, making it “the largest and most prolific unit of criminal prosecutors dedicated solely to health care fraud in the country,” according to Caldwell’s remarks.
Working With Others
One of the most beneficial fraud fighting weapons is cooperation between the various government departments and divisions when investigating fraud cases, as occurs with the Health Care Fraud Prevention and Enforcement Action Team. This DOJ and Health and Human Services (HHS) joint strike force operation has proven to be a very successful endeavor, with a 95 percent conviction rate. The strike force consists of a coordinated team of DOJ investigators and prosecutors, Federal Bureau of Investigation agents, HHS employees, and state and local law enforcement. In 2013, as a result of strike force operations, 345 individuals were charged and 234 entered guilty pleas, while another 46 were convicted in jury trials.
Another high-priority target area, according to Caldwell, are executives at health care provider entities such as hospitals. During 2013, individuals prosecuted faced an average prison time of 52 months. Another action is to freeze assets, which, Caldwell says, prevents criminals from enjoying the proceeds of their schemes. The strike force and other DOJ investigators and prosecutors are using real-time analysis of Centers for Medicare and Medicaid Services data to detect and track criminal activity. Finally, Caldwell says the DOJ wants to step up prosecutions of corporations that commit fraud or abuse against Medicare and other government programs. He said that the department has several ongoing health care fraud investigations and more are coming.
Both Domestic and Foreign
Many laboratories have found that their products are more easily distributed in foreign markets and often can be reimbursed in those other countries without the cost and hassle of dealing with the risks encountered in America. However, the DOJ has developed mutual legal assistance treaties and runs parallel investigations with foreign agencies. Any laboratory operating globally should be aware of the Foreign Corrupt Practices Act and consider hiring a legal firm from the country in which they intend to promote or sell their products.
Complex Cases Require More Resources
Those involved in criminal conduct and fraud can go to extravagant lengths to hide these activities, and that is where whistleblowers come in. Whistleblowers can provide documentation and clues to the factual circumstances of a case and help investigators uncover fraud and criminal activity more quickly and efficiently. Caldwell told the audience that “Qui tam cases are a vital part of the criminal division’s future efforts.” He praised qui tam relators, saying they are courageous and “all too often, they have lost their jobs after they raised concerns in their workplace.”
Conclusion
What does this mean for clinical and anatomic pathology laboratories? The risk of not having an effective compliance program becomes more important than ever before. Facing civil penalties as a health care entity is one thing. Facing criminal charges as owners or senior leaders in health care organizations is quite another. All laboratories should have a strong policy and procedure related to defending against whistleblowers. The first step of such a program is to listen to what employees have to say and then to conduct an investigation to determine credibility for the complaint or issue. Always work with the idea that whatever the outcome of the investigation, be prepared to do the right thing as far as refunding overpayments, correcting problems and issues, and rewarding employees who bring issues forward. The idea is to make the prerelator a source of discovery so they never become a relator.
Takeaway: All whistleblower cases will be reviewed by agents of the criminal division of the DOJ, who are experienced and expert in investigations and prosecutions. This makes it even more important for laboratories and other providers to do all they can to prevent a whistleblower case from ever being filed.
