During the Federal Bar Association’s annual Qui Tam Conference on February 23, 2022, Gregory E. Demske, Chief Counsel to the Inspector General for the Department of Health and Human Services’ (HHS) Office of Inspector General (OIG), discussed OIG’s role in False Claims Act (FCA) enforcement, as well as enforcement priorities for 2022.
Demske’s remarks provide insight into the role OIG plays in deciding which FCA matters to pursue and the enforcement tools that OIG utilizes in FCA matters, with a focus on the Office’s exclusion authority. In any given year, OIG adds approximately 1,000 to 4,000 people to the List of Excluded Individuals/Entities (LEIE), and many of these exclusions are imposed as the result of convictions or lost licenses. Under OIG’s formal protocol for prioritizing cases for exclusion, the Office’s Fraud Risk Indicator provides guidance regarding how OIG assesses the future risk that the party poses to Federal healthcare programs. On the low end of the spectrum, typically involving self-disclosure cases, OIG generally resolves such cases quickly by providing release from potential exclusion without any further requirements. For cases on the high end of the spectrum, where OIG determines that the party presents a high risk of fraud, OIG may pursue its administrative remedies and exclude the party from participation in Federal healthcare programs. Demske concluded by explaining that in most FCA matters today, OIG will elect not to pursue its own administrative remedies, but rather provide a release from potential exclusion and participate in the monetary settlement process with DOJ.
Also during his remarks, Demske discussed OIG’s enforcement priorities moving forward in 2022. Those priorities are as follows:
- COVID-19 Fraud: OIG is focusing on two types of fraud that have arisen out of the pandemic: (1) fraud related to the disease itself, such as fake tests, fake vaccines or remedies, and the use of COVID-19 as a hook for identity theft or billing Federal healthcare programs for medically unnecessary services; and (2) fraud related to the response to COVID-19, such as fraud against HHS’ Provider Relief Fund and Uninsured Relief Fund.
- Telehealth and “Telefraud”: In order to prevent and detect potential abuse, OIG will be conducting audits and evaluations to identify potential vulnerabilities or improvements to help guide programs after the pandemic ends. Additionally, OIG will focus on “telefraud” schemes, which leverage telemarketers to contact patients in order to provide medically unnecessary items or services.
- Managed Care: Since the risks associated with managed care are different than the risks associated with traditional fee-for-service programs, OIG is focusing on patient health and safety within managed care plans, such as whether plans have adequate provider networks and whether those providers are actually available for patients. OIG is also focused on fraud related to managed care, including whether diagnoses are being inflated and the various ways in which diagnoses may have been misrepresented on claims for reimbursement.
- Nursing Home Facilities: In light of the impact COVID-19 has had on nursing home facilities, OIG’s efforts in this area focus on healthcare fraud in the nursing home context, as well as working to identify general best practices for the health and safety of patients in nursing homes.
- Opioids: Demske stated that opioids continue to be a significant focus for OIG.
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