How the DOJ’s 2022 Focus Could Affect Health Care Companies

Health care organizations and providers could be impacted by the Department of Justice’s 2022 priorities, just announced by U.S. Attorney General Merrick Garland and Assistant Attorney General Ken Polite, Chief of the Criminal Division. In this article, we’ll break down what changes these priorities could bring.

The DOJ’s 2022 priorities include:

• • Increased resources for white-collar enforcement
  • Interagency cooperation
  • Increased use of data analytics
  • Individual accountability
  • Enforcement of health care fraud

1. White-Collar Enforcement

The department’s 2022 budget request includes $36.5 million to allow for an added 120 Assistant United States Attorneys and $345 million for 900 more FBI agents to combat white-collar crimes.

2. Interagency Cooperation to Combat Health Care Fraud

AG Garland announced a renewed effort to work closely with Inspector Generals across the federal government to identify perpetrators of health care fraud and other government program fraud. He highlighted the Centers for Medicare and Medicaid Services as an important partner in combating government program fraud.

3. Increased Use of Data Analytics

While data analytics have been used by the department’s Health Care Fraud Strike Forces in the past to detect indicators of health care fraud in Medicare and Medicaid claims, AG Garland announced an increase in using data analytics to combat white-collar crime in cooperation with other federal agencies.

4. Individual Accountability

AG Garland reinforced the department’s 2021 announcement that individuals — not only companies — will be held accountable for criminal misconduct. And companies must cooperate fully to receive any credit in resolving claims or charges against them. For instance, if a health care organization wanted to receive credit in the course of an investigation, it must provide the department all non-privileged information related to the employees and executives involved in any misconduct at issue.

5. Enforcement of Health Care Fraud Remains a Priority for DOJ’s Criminal and Civil Divisions

AAG Polite reinforced that health care-related fraud and diversion crimes remain a priority of the department’s Criminal Division by illustrating the recent prosecutions of addiction treatment professionals and opioid diversion by physicians. AAG Polite also echoed AG Garland’s remarks about holding individuals accountable in the investigation of companies.

The Civil Division recently announced its report of False Claims Act (FCA) recoveries for fiscal year 2021, and it too reflects DOJ’s continuing priority on health care fraud civil enforcement. Last year, DOJ obtained $5.6 billion in settlements and judgments from “civil cases involving fraud and false claims” against the federal government — DOJ’s second-best year ever. Of that amount, health care fraud FCA cases predominated: 86.67% of FCA settlements and judgments were related to health care, which came out to $5.066 billion. Three health care FCA settlements accounted for 57.2% of the overall $5.6 billion recovered:

• • $209.3 million from Indivior related to the alleged unlawful promotion of the addiction treatment drug Suboxone
  • $2.8 billion from Purdue Pharma related to the promotion of opioid drugs to health care providers that it allegedly knew were prescribing opioids for uses that were unsafe, ineffective and medically unnecessary
  • $225 million from members of the Sackler family who purportedly approved an unlawful marketing program for OxyContin while serving as board members for Purdue

Overall, the DOJ Criminal Division’s focus on health care fraud, interagency cooperation and data analytics mirrors the Civil Division’s focus and tactics over the last several years.

Please contact A. Brian Albritton, Walt Green or any member of Phelps’ Health Care team if you have questions or need compliance advice and guidance.