1 HANDLING CRIMINAL HEALTHCARE FRAUD CASES ANNUAL COMPLIANCE INSTITUTE APRIL 20, 2016 ─ 10:00 TO 11:45 A.M. LAS VEGAS, NEVADA Kirk Ogrosky Arnold & Porter LLP Washington, DC [email protected]Paul E. Pelletier Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. Washington, DC [email protected]Allan Medina Assistant Chief, Fraud Section US Department of Justice Washington, DC [email protected]Introduction 2 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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HANDLING CRIMINAL HEALTHCARE FRAUD CASES · HANDLING CRIMINAL HEALTHCARE FRAUD CASES ANNUAL COMPLIANCE INSTITUTE APRIL 20, 2016 ─ 10:00 TO 11:45 A.M. LAS VEGAS, NEVADA Kirk Ogrosky
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HANDLING CRIMINAL HEALTHCARE FRAUD CASES
ANNUAL COMPLIANCE INSTITUTEAPRIL 20, 2016 ─ 10:00 TO 11:45 A.M.
• 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