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HANDLING CRIMINAL HEALTHCARE FRAUD CASES

ANNUAL COMPLIANCE INSTITUTEAPRIL 20, 2016 ─ 10:00 TO 11:45 A.M.

LAS VEGAS, NEVADA

Kirk OgroskyArnold & Porter LLP

Washington, DCKirk.Ogrosky@aporter.com

Paul E. PelletierMintz, Levin, Cohn, Ferris,

Glovsky & Popeo, P.C.Washington, DC

PEPelletier@mintz.com

Allan MedinaAssistant Chief, Fraud Section

US Department of JusticeWashington, DC

Allan.Medina@usdoj.gov

Introduction

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We will address how to handle a criminal health care fraud investigation

Key takeaway:

Complete understanding of the facts including and an evaluation of the intent of relevant individual’s is essential: There are NO short cuts

Must understand applicable laws and how investigations progress

Recent actions of Medicare Fraud Strike Force

Factors that favor charging:

─ Failure to provide service as billed

─ Service not necessary

─ Patient harm

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Overview

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Individual Accountability Guidance

Role of In-House Compliance and Legal Counsel

Overview of Investigation

Jurisdiction

Agencies

Grand Jury

Subpoenas

Testimony

Search Warrants

Executives & Employees

Proffers & Cooperation

Indictment & Typical Offenses

Trial & Sentencing

Impact

Exclusion

Restitution

INDIVIDUAL ACCOUNTABILITYFOR CORPORATE WRONGDOING

DAG SALLY YATES -- SEPT. 9, 2015

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Corporations receive no credit for cooperation without providing “all relevant facts relating to” responsible individuals.

Executives more than ever have a bulls eye on their back

Applies to Criminal and Civil Healthcare Investigations.

Qui Tam cases can lead to criminal indictments.

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Role of In-House Compliance and Legal Counsel• Government working with whistleblowers to identify and

prosecute False Claims Act cases, which frequently spawn parallel criminal cases.

• Government investigations can trigger collateral private litigation.

• Mistakes can result in waived privileges, binding admissions, payment suspension, loss of licenses or privileges, penalties, imprisonment, and government-wide exclusion.

• Does the provider or institution have an effective compliance plan?

• Will it be necessary to conduct employee interviews?• Who will handle them?• Where will the interviews be conducted?• How will interviews be memorialized?• Will the company retain counsel for employees if requested?• How will the company handle a refusal to cooperate?

Overview of Criminal Case

• Jurisdiction (Federal and State)

oFBI, OIG, and MFCU

• Investigation Stage

• Grand Jury Presentation

• Indictment/Information

• Trial

• Sentencing

• Collateral Impact

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Grand Jury

• Process

• Procedures

• Witnesses

• Documents

• Summary Evidence

• Rule 6(e)

• Return of Indictment

• Arrest Warrant

• Asset Freeze

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Search WarrantsProcess:

• Affidavit to Magistrate• Probable Cause• Place to be Searched• Items to be Seized• Plain view exception• Employee Interviews

Advice:• Comply with law enforcement• Call attorney• Have an employee prepared• Do not interfere• Assist in location

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• Should the Corporation Self-Report to the Government?

• Counter-considerations: Strike Suits, Derivative Suits, Waiver of Privileges and Market Reaction?

• What is Cooperation? • Access to Internal Investigation• Disciplining Employees

• Access to Employees and Information• What To Expect During The Process Once You

Self-report?• Internal investigations are disruptive and

costly• The resulting report may not be privileged

• What Other Corrective Actions Can The Corporation Take?

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Proffers & Cooperation

Trial & Sentencing

• Most criminal cases do not proceed to trial

• At trial, DOJ obtains convictions in 4 out of 5 cases

• Exercising the right to trial, impacts potential punishment

• Understand USSG and all potential enhancements

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Impact

• Incarceration• Mandatory Restitution• Fines• Potential civil liability• Mandatory exclusion• Permissive exclusion• Loan terms• Legal fees

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Questions?

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