Modern Healthcare

Justice Department scrutinizi­ng individual execs’ role in fraud

- By Lisa Schencker

Health Diagnostic Laboratory, along with another lab, paid nearly $50 million to the government this year to settle allegation­s that it improperly paid doctors for referrals.

But for the company’s former leader, the story was just beginning.

After the settlement, the government accused former Health Diagnostic Laboratori­es CEO Latonya Mallory and others of violating the False Claims Act and anti-kickback statute.

A memo distribute­d Sept. 9 shows the government may be getting serious about pursuing healthcare executives tangled in fraud allegation­s.

U.S. Deputy Attorney General Sally Quillian Yates said companies must now disclose “all relevant facts relating to the individual­s responsibl­e for the misconduct” in order to qualify for “cooperatio­n credit”—less severe penalties in exchange for cooperatin­g with the Justice Department.

Yates called the new requiremen­t “a substantia­l shift from our prior practice,” in a speech.

Experts say the move could help the government in its perpetual fight against healthcare fraud.

“If they do follow the new guidelines, it could very well be a sea change in the way healthcare companies conduct their business, and how healthcare companies ramp up their internal compliance,” said Marc Raspanti, a partner at Pietragall­o Gordon Alfano Bosick & Raspanti, who represents whistle-blowers and is a former government prosecutor. He noted, however, that this isn’t the first time the government has said it would go after individual­s.

Raspanti said Congress has chided the Justice Department for years, saying that the billions of dollars in settlement­s haven’t deterred healthcare fraud. Individual liability, he said, has been the missing piece.

“Now, if there’s a chance you may be on the hook personally for liability, whether it be civil or criminal or both ... if I were an executive in a company, I’d be more conscienti­ous,” Raspanti said.

Several obstacles previously have blocked the government from pursuing more individ- uals in healthcare fraud cases, said Patrick Burns, co-director of the Taxpayers Against Fraud Education Fund, a not-for-profit partly funded by whistle-blowers, and the law firms that represent them.

For example, to prove a civil case,

the government must show that a prepondera­nce of the evidence points toward guilt. In a criminal case, it must prove its allegation­s beyond a reasonable doubt.

Burns added that there’s also a cultural bias in the justice system against sending wealthy, highly educated individual­s, such as those running healthcare companies, to prison. “Well-to-do folks who went to great schools, those people don’t go to jail,” Burns said. “They go to country clubs. People who listen to country music, people who work for hourly wages, we send those people to jail.”

Only a few corporate heads have faced punishment over healthcare

“Well-to-do-folks went who to great schools, those people don’t go to jail. They go to country clubs. People who listen to country music, people who work for hourly wages, we send those people to jail.” Patrick Burns Co-director Taxpayers Against Fraud Education Fund

“When the enforcemen­t community comes into healthcare, they’re going to see a more robust effort” than in other industries. Roy Snell, CEO Health Care Compliance Associatio­n

fraud, Burns said, despite thousands of such cases.

In 2012, a federal appeals court ruled that three executives at Pharma Purdue, formerly known as Purdue Frederick, could be excluded from doing business with the federal government after they pleaded guilty to failing to prevent the company’s fraudulent marketing of the pain medication OxyContin.

But Roy Snell, CEO of the Health Care Compliance Associatio­n, says the healthcare industry has already been working at compliance.

He said healthcare companies have employed compliance officers and directors for years to focus on education, auditing and investigat­ions.

The Health Care Compliance Associatio­n has about 10,000 members, while its sister Society of Corporate Compliance and Ethics, which serves other industries, has about 5,000 members, Snell said.

“When the enforcemen­t community comes into healthcare, they’re going to see a more robust effort,” Snell said.

Others, such as Gabriel Imperato, a managing partner at Broad and Cassel who represents healthcare companies, say the DOJ’s warning may cause healthcare companies to further emphasize compliance.

“It’s going to make the ability of (a company) to get credit for cooperatio­n a little bit more exacting, and it’s going to cause companies a little more angst and turmoil in trying to work their way through some of these investigat­ions,” Imperato said.

Burns called the DOJ’s memo an important conversati­on starter, but added that he would like to see those found guilty of healthcare fraud banned from working with federal healthcare programs.

“From the sales force all the way up to the CEO of the company, they’re incentiviz­ed to do the fraud, because the pain when they’re caught is shouldered by the people who own the stock,” Burns said.

More exclusions would get industry leaders’ attention, Burns said.

“If you bring the pain, you bring the change,” Burns said. “But the pain has to be personal.”

 ?? Sources:TaxpayersA­gainstFrau­dEducation Fund,U.S.Department­ofJustice ??
Sources:TaxpayersA­gainstFrau­dEducation Fund,U.S.Department­ofJustice
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