The Department of Justice (DOJ) has stepped up its enforcement efforts regarding Healthcare Fraud. Ileana Hernandez of Manatt, Phelps & Phillips Law Firm shares her views on the DOJ’s recent approach to prosecuting healthcare fraud.
Hernandez says that the DOJ is now focused on prosecuting Larceny for healthcare benefits. But, going forward, she predicts that the DOJ will continue its approach to go after Trust Fund Recovery Penalty (TFRP) cases.
“I think it’s important to recognize that the government has been very aggressive in this area…” Says Hernandez, “There are certainly more qui tam lawsuits being filed, and there’s been a lot of expansion… it’s an area that the government has been very focused on.”
In January 2017, Attorney General Jeff Sessions said that “healthcare fraud is a crime” and that the DOJ will be taking a stand against healthcare fraud. The DOJ formed a new Health Care Fraud Unit to deal with these types of cases specifically.
Hernandez added that the DOJ has been looking into several types of fraud, including false claims, kickbacks, identity theft, and drug diversion. “If you are doing anything to interfere with the government’s ability to recover overpayments… there are going to be implications.” Hernandez said. Among those implications, Hernandez mentions that jail time is a major possibility.
A recent example of the DOJ prosecuting healthcare fraud is the United States of America v. Philip Esformes, filed on April 28th, 2017, in the Southern District Court of Florida. The case alleges that physician Dr. Salomon Eslava participated in Medicare Fraud through his role at multiple Miami-area assisted living facilities that were owned and operated by Esformes. The DOJ is trying to hold Esformes accountable for $1 billion in false billings from Medicare, Medicaid, and Tricare programs.
In addition, the DOJ announced charges against two brothers with a history of repeat convictions for healthcare fraud who ran a hospice business. Brothers Philip and Jordan Barkan were charged with conspiracy to commit healthcare fraud, health care fraud, violations of anti-kickback statutes, and money laundering. The brothers allegedly submitted over $1 million in fraudulent bills on behalf of themselves through a hospice business they owned under multiple company names.
Hernandez says that the DOJ’s recent efforts will go after more than just large hospitals and health care providers. “I think what you’ll see is the government investigating all areas of healthcare,” she said. “We’re going to see a lot more focus on individuals and small practices as well.”
Hernandez also noted that in a meeting with the National Health Care Anti-Fraud Association (NHCAA), Deputy Assistant Attorney General Brent Snyder encouraged whistleblowers to come forward. The NHCAA is part of the Health Care Fraud Prevention & Enforcement Action Team (HEAT), which President Obama created in 2009 to fight fraud in the Medicare and Medicaid programs.
“It’s a huge problem, it’s getting bigger, and there is a lot of money being lost because of healthcare fraud,” Hernandez explained. “This is truly something where we need everyone working together.”