By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On January 29, 2018, the U.S. Department of Justice (DOJ) released a new internal memorandum that we believe signals a backing-off of government support for False Claims Act cases. The memorandum sent by Associate Attorney General Rachel Brand, references “vast reams” of government agency guidance explaining the government’s views and interpretation of various laws. It includes laws related to requirements for accurate billing of Medicare and Medicaid by healthcare providers.
The “Brand Memorandum.”
In the memo, Brand said the DOJ “may not use its enforcement authority to effectively convert agency guidance documents into binding rules.” The memo is a product of Attorney General Jeff Sessions’ move in November 2017, to curtail “regulation by guidance.”
It states that it specifically applies to civil enforcement of laws, including the False Claims Act (FCA), that the Associate Attorney General oversees.
Click here to view the DOJ’s Brand Memorandum in full on our website.
Implications of the Brand Memorandum.
Brand’s memorandum stopped short of completely forbidding the use of agency guidance in support of DOJ cases. The memorandum indicates that, while violations of agency guidance can’t be used to prove violations of law, they can still be used “to help prove that the party had the requisite knowledge” of its legal obligations, Brand wrote.
FCA cases can be affected by many types of guidance. Medicare contractors provide guidance on billing when appropriate and the U.S. Food and Drug Administration (FDA) issues guidance on illicit off-label promotion. Additionally, the Office of the Inspector General (OIG) issues guidance and bulletins related to kickbacks and improper physician referrals.
To learn more about the DOJ’s role in health care fraud and compliance, click here to read one of my prior blogs.
What Will the Long Term Effects Be?
We see these latest actions by the DOJ to announce a policy of allowing big corporations unbridled discretion to steal from the tax payers. We believe it signals a change to discouraging False Claims Act cases from being brought. It is difficult to see why DOJ is easing off of matters that help the prosecution of False Claims Act cases, especially those by individual relators (whistle blowers). Whistle blower or qui tam cases brought by hundreds of individual whistle blowers are now recovering billions of dollars each year in Medicare and Medicaid fraud. Why would anyone want to stifle such a successful program?
It is argued by DOJ that the DOJ’s budget is limited and U.S. Attorneys need to be freed up to go after serious crime, but that is exactly why the False Claims Act was passed in the first place. If the government doesn’t have the resources, personnel or, more importantly, the interest in pursuing those who files false claims and state form the tax payer, then private whistle blowers or relators are authorized to do this. All the government has to do is to decline to intervene in the case and then the relator can go ahead and pursue the case on its own, without costing the government anything. It was because of war profiteers’ treating the U.S. treasury as a piggy bank, to be looted anytime they felt like it, that caused the False Claims Act’s passage in the Civil War era.
There is also a big concern that if there is less guidance on such complex topics as how to properly document valid medical services and procedures delivered to patients, then how can busy doctors, health care professionals and health facilities hope to understand what is require of them. It is my understanding that such “guidance” is for just such a purpose, to guide those who are trying to comply.
Consult with a Health Law Attorney Experienced in Medicare and Medicaid Issues Now.
The attorneys of The Health Law Firm represent health care providers in Medicare audits, ZPIC audits and RAC audits throughout Florida and across the U.S. They also represent physicians, medical groups, nursing homes, home health agencies, pharmacies, hospitals and other healthcare providers and institutions in Medicare and Medicaid investigations, audits, recovery actions and termination from the Medicare or Medicaid Program.
For more information please visit our website at www.TheHealthLawFirm.com or call (407) 331-6620 or (850) 439-1001.
Overley, Jeff. “New DOJ Memo Will Make Waves In Fraud Cases.” Law360. (January 29, 2018). Web.
“New DOJ Memo Will Make Waves In Fraud Cases.” Institute for Legal Reform. (January 29, 2018). Web.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
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