Legal: enforcement ahead
Quite a bit of political noise was made in 2009 about preventing, finding and prosecuting healthcare fraud, and all sectors of the industry can reasonably expect to feel the crackdown in 2010.
Federal and state agencies are gunning for fraud and abuse in all its forms, including flyby-night criminals running HIV infusion scams, hospitals engaged in prohibited financial arrangements with physicians and multinational pharmaceutical and device companies paying kickbacks and otherwise illegally marketing their wares to physicians.
This has been true for the past few years, but this year will be defined by healthcare reform—whether sorting out the provisions of a new law or coming to terms with what Democrats failed to pass.
“The enforcers step in and try to compel behavioral changes that could not be accomplished through the legislative process,” says Frank Sheeder, a partner in the law firm Jones Day.
New resources and attention to healthcare fraud by HHS and the U.S. Justice Department will gain traction throughout the year, with multiagency fraud “strike forces” expanding into additional cities and the agencies getting a better handle on sifting through claims data to find fraud.
Changes made to the False Claims Act through the Fraud Enforcement and Recovery Act of 2009 have armed whistle-blowers and government investigators with new tools they’ll bring to bear in 2010. The law allows the Justice Department to delegate the authority to approve civil investigative demands in False Claims Act investigations, which previously required the personal signature of the attorney general.
The legal community widely expects that authority to be given to U.S. attorneys. Also as a result of the law, the Justice Department is allowed—though not required—to share the fruits of those demands with other agencies and whistle-blowers, possibly breathing life into weak lawsuits. Essentially all of this means “easier access to information with fewer hoops to jump through,” Sheeder says.
Last year, antitrust lawyers predicted the incoming and yet unknown Obama team would assume a tough stance on enforcing competition laws, which has come to pass.
Art Lerner, a partner in the law firm Crowell & Moring, says health insurance companies might get unwelcome attention from the Justice Department in 2010—Obama officials have criticized their predecessors as too lax on the industry— and the Federal Trade Commission will continue investigating and challenging hospital mergers.
Healthcare reform will generate business for antitrust lawyers, too. “Whenever the competitive dynamics change and the money is changed, there’s the potential for grown-ups arguing about money,” Lerner says. “Antitrust will probably be a tool in these disputes.”
Lerner: Insurers may face unwelcome attention from feds.