I have recently written about the Department of Justice’s release of a Sep. 9, 2015, memorandum on Individual Accountability for Corporate Wrongdoing, a publication from the government that has made significant news since its announcement. Another noteworthy publication from the government has received less attention but may be equally worthy of consideration, especially as it relates to health care fraud and how the government is changing how it pursues allegations of fraud and billing abuse.
In a February 2015 letter which has been revealed by NPR and the Center for Public Integrity, the director of the Office of Management and Budget wrote to the Health and Human Services (HHS) secretary to be more aggressive in preventing improper payments to Medicare and Medicaid health care providers. Citing HHS’s 2014 fiscal year report which showed more than $12 billion in improper payments, OMB Director Shaun Donovan urged HHS to “attack the challenge with every tool at our disposal.” He urged a reexamination of “improper payment reduction strategies on a number of fronts” through the use of improper payment estimation and remediation tools provided for in the Improper Payments Elimination and Recovery Improvement Act of 2012. Director Donovan stated agencies should refer matters involving possible fraudulent activities to the U.S. Department of Justice (DOJ) and the inspector general. He called for the HHS to complete a “comprehensive corrective action plan” that “describes the problem’s root causes, establishes critical path milestones to meet improper payment reduction targets.”
Director Donovan’s tone, when considered with the Sept. 9 DOJ memorandum with declarations on the aggressive pursuit of individuals within corporations committing fraud in general, is consistent with a surge of enormous corporate settlements with DOJ. The prosecutorial activity nationally likely portends increased government scrutiny in pursuing claims of fraud and abuse against not just health care organizations, but also their executives and managers for whom individual liability and the potential for loss of liberty has never been higher.
Patrick Mincey is a trial lawyer in Wilmington, where he founded the Criminal Defense Group at Cranfill Sumner & Hartzog LLP. His criminal practice ranges from representing individuals and corporate clients who are targets, subjects or witnesses in federal and state white collar proceedings to “blue collar” defendants charged with murder, drug conspiracies and assaults. To contact Patrick Mincey, call (910) 777-6017 or email him at [email protected].
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