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The already broad power of the FCA just got bigger

The False Claims Act (FCA) is one of the federal government’s largest tools when it comes to allegations of healthcare fraud. The Department of Justice (DOJ) reports that it received over $2 billion as a result of FCA cases during the fiscal year ending in September 2020 alone.

Although the government already wields this massive tool against healthcare providers on a regular basis, the government just expanded the ability of their attorneys to use this tool even more.

How did the government expand the power of the FCA?

Attorney General Merrick Garland recently announced that the DOJ will allow government attorneys to cite articles published within the industry to help build their case. This means that even though publications by the industry are not officially law, they can provide support for the feds to build up allegations on what would likely be an otherwise weak FCA case.

What does this mean for healthcare providers?

Allegations of an FCA violation are likely to increase. As a result, it is wise for healthcare providers and other facilities that fall within the scope of the FCA to take a two-pronged response:

  • Compliance. If nothing else, this serves as an opportunity to review current practices and make sure they follow the FCA. This internal audit should include a review of billing practices, arrangements with other facilities and the medical necessity of services provided to patients.
  • Defense. Act if accused of a violation. This could come in the form of a notification of a government investigation or outright allegations of a failure to comply with the FCA. Whatever form it takes, prepare to respond.

Because these matters are complex it is generally wise to seek legal counsel experienced in healthcare law to help navigate the situation.

Attorney John Rivas is responsible for this communication