Despite the Trump Administration’s declaration of a state of emergency on October 26, 2017, the federal response to the opioid crisis largely languished on the back burner—much to the chagrin of states in the trenches of the opioid epidemic. However, based on the flurry of activity over the past several weeks, the federal government response now seems to be gathering substantive momentum, with various agencies and government actors launching attacks on all fronts—administrative, legislative, and enforcement alike. The federal government’s recent efforts present opportunities for health care organizations, life sciences companies, and health tech companies to get involved at the ground level to help influence opioid policy and provide needed products, services, and support to reduce the incidence of opioid abuse and address the health care needs of patients.
The Health Care Group’s newest partners, William S.W. Chang and Laura M. Kidd Cordova, along with Counsel Stephanie D. Willis, have authored an Alert about the 21st Health Care Fraud and Abuse Control Program (HCFAC) annual report released last Friday. The HCFAC report is a joint effort of the U.S. Department of Justice (DOJ) and the U.S. Department of Health and Human Services (HHS) that describes the expenditures, results, and enforcement actions of the previous fiscal year. The authors note that compared to FY 2016, other than expanded efforts to combat the opioid crisis, enforcement remained more or less consistent with prior trends. In monetary terms, HCFAC spending slightly increased, while overall monetary recovery and returns on investment in fraud prevention efforts significantly decreased. Interestingly, however, the proportion of overall recoveries resulting from HHS auditing activities considerably increased.
Read the rest of the Alert’s analysis of the HCFAC report and register for our webinar next Tuesday, April 17th. During the webinar, listeners will hear Will and Stephanie, who were attorneys employed by DOJ and the HHS Office of the Inspector General (HHS-OIG), respectively, give their insights about the significance of the report for health care companies and the health care industry.
The Department of Justice (DOJ) has further focused its sights on individual executives as responsible parties for corporate misconduct. On September 9, 2015, Deputy Attorney General Sally Quillian Yates issued a strongly worded seven-page memorandum to all U.S. Attorneys and the Assistant Attorneys General of DOJ’s various divisions nationwide titled “Individual Accountability for Corporate Wrongdoing” (the “Memorandum”). Overall, the Memorandum imposes further expectations that government attorneys will investigate the acts of individual executives and management personnel before providing cooperation credit to or allowing the resolution of a civil or criminal case against a corporate entity. Moreover, the Memorandum serves as a tacit warning to defense counsel that it will be even harder to negotiate concessions for corporate liability without providing information about potentially responsible individuals that is satisfactory to the investigating agencies.
Every year, the Department of Justice (DOJ) and the Department of Health and Human Services Office of the Inspector General (OIG) report the results of their fraud prevention and recovery efforts to Congress. As recounted in the recently released Health Care Fraud and Abuse Control Program (HCFAC) report, the overall amount recovered in FY 2014 was $1 billion less than what the agencies reported in 2013 ($4.3 billion). Nevertheless, the report touted the $2 increase in the return on investment from DOJ and OIG’s fraud and abuse investigations overall (from $5.70 to $7.70). The HCFAC report shows that, despite losing $62.1 million in funding beginning in FY 2013 due to sequestration, both DOJ’s and OIG’s antifraud work remains potent and is growing more sophisticated.
Here is an overall comparison of the FY 2014 and FY 2013 reports:
|DOJ Activities||FY 2013||FY 2014|
|New Criminal Investigations||1,013||924|
|New Civil Investigations||1,083||782|
|Health Care Fraud Convictions||718||734|
|OIG Activities||FY 2013||FY 2014|
|New Criminal Actions||849||924|
|New Civil Actions||458||529|
|Individuals Excluded from Federal Health Care Programs||3,214||4,017|