Insight

Top 10 Issues in Health Law 2023: Fraud & Abuse Issues to Watch

AHLA Health Law Connections

Christopher C. Sabis

Christopher C. Sabis

December 17, 2024 03:37 PM

Top 10 Issues in Health Law 2023: Fraud & Abuse Issues to Watch

January 2023 I AHLA Health Law Connections I Christopher C. Sabis

For full article with citations, please visit this link:

If there was any pandemic-related slowing of DOJ’s fraud enforcement machine, then it has quickly regained steam. DOJ brought in $5.6 billion in total False Claims Act (FCA) settlements and judgments in 2021, and several of the Department’s stated priorities from February 2022 remain unchanged. We can expect continued enforcement activity in areas like opioids, managed care (Medicare Part C), and medically unnecessary services. Indeed, over $3 billion of the 2021 total came from two opioid-related resolutions, and a number of managed care providers paid significant amounts to settle allegations that they manipulated their risk adjustment scores to make their patients appear sicker than they were and increase their capitated payments. Some FCA issues merit specific attention going into 2023, including health IT, subregulatory guidance, and kickbacks.

DOJ has characterized health IT, including cybersecurity and Electronic Health Records (EHR), as a focus area. Cybersecurity has been at the core of many enforcement actions in recent years. For example, in September 2019, three individuals were indicted for conspiracy to breach a health care provider’s EHR system and steal protected health information. More broadly, EHR systems have been a source of significant FCA settlements, and the area continues to evolve. EHR-related fraud enforcement historically has centered on EHR donation fraud cases, allegations of false meaningful use (MU) attestations, and kickbacks relating to the adoption of particular EHR systems. The most recent EHR settlement is along similar lines. Some EHR-related FCA cases involve a different theory, alleging what I refer to as Substantive EHR Fraud. In these cases, a whistleblower or the government claim that the functions of the EHR system itself are causing or contributing to alleged fraudulent conduct, such as upcoding. It will be interesting to see what fraud enforcement actions arise in the health IT space in 2023.

Subregulatory guidance will continue to be debated in 2023. In the summer of 2021, Attorney General Merrick Garland issued a memorandum rescinding limitations on the uses of subregulatory guidance that DOJ had announced in the Sessions and Brand Memos. The Department subsequently deleted a section on subregulatory guidance from the Justice Manual that it had adopted to expand on and clarify the Brand Memo in particular. A revised version of Justice Manual Section 1-20.000 has not been released. It will be interesting to see if the Department provides additional details on the appropriate uses of subregulatory guidance in FCA cases or simply relies on the broader policies stated in the Garland Memo.

While these will be important topics in 2023, kickbacks remain the most prevalent area of DOJ civil and criminal enforcement. The telemedicine sector is a particular target of Anti-Kickback Statute (AKS) investigations. Alleged kickbacks in telemedicine have resulted in several enforcement actions, including a $64 million settlement related to a nationwide kickback conspiracy and a guilty plea in Kentucky relating to a conspiracy to pay and receive kickbacks in exchange for physician orders for cancer genomic testing.

An interesting case addressing the scope of the AKS is pending in the Middle District of Tennessee. There, the court denied a motion to dismiss kickback claims asserted by the plaintiff states. In doing so, the court ruled that the states could enforce the federal AKS through their respective state FCAs in relation to Medicaid beneficiaries’ incurred medical expenses (IME) payments for services not covered by the applicable state Medicaid programs. The ruling appears unprecedented and inconsistent with other federal law regarding the nature of IME payments. The outcome of this case could have significant implications for the breadth of AKS applicability. Stay tuned.

Trending Articles

Discover The Best Lawyers in Spain 2025 Edition


by Jennifer Verta

Highlighting Spain’s leading legal professionals and rising talents.

Flags of Spain, representing Best Lawyers country

Unveiling the 2025 Best Lawyers Editions in Brazil, Mexico, Portugal and South Africa


by Jennifer Verta

Best Lawyers celebrates the finest in law, reaffirming its commitment to the global legal community.

Flags of Brazil, Mexico, Portugal and South Africa, representing Best Lawyers countries

Presenting the 2025 Best Lawyers Editions in Chile, Colombia, Peru and Puerto Rico


by Jennifer Verta

Celebrating top legal professionals in South America and the Caribbean.

Flags of Puerto Rico, Chile, Colombia, and Peru, representing countries featured in the Best Lawyers

How to Increase Your Online Visibility With a Legal Directory Profile


by Jennifer Verta

Maximize your firm’s reach with a legal directory profile.

Image of a legal directory profile

Paramount Hit With NY Class Action Lawsuit Over Mass Layoffs


by Gregory Sirico

Paramount Global faces a class action lawsuit for allegedly violating New York's WARN Act after laying off 300+ employees without proper notice in September.

Animated man in suit being erased with Paramount logo in background

Tampa Appeals Court ‘Sends Clear Message,” Ensuring School Tax Referendum Stays on Ballot


by Gregory Sirico

Hillsborough County's tax referendum is back on the 2024 ballot, promising $177 million for schools and empowering residents to decide the future of education.

Graduation cap in air surrounded by pencils and money

The Future of Family Law: 3 Top Trends Driving the Field


by Gregory Sirico

How technology, mental health awareness and alternative dispute resolution are transforming family law to better support evolving family dynamics.

Animated child looking at staircase to beach scene

The Human Cost


by Justin Smulison

2 new EU laws aim to reshape global business by enforcing ethical supply chains, focusing on human rights and sustainability

Worker wearing hat stands in field carrying equipment

The 2025 Legal Outlook Survey Results Are In


by Jennifer Verta

Discover what Best Lawyers honorees see ahead for the legal industry.

Person standing at a crossroads with multiple intersecting paths and a signpost.

Safe Drinking Water Is the Law, First Nations Tell Canada in $1.1B Class Action


by Gregory Sirico

Canada's argument that it has "no legal obligation" to provide First Nations with clean drinking water has sparked a major human rights debate.

Individual drinking water in front of window

New Mass. Child Custody Bills Could Transform US Family Law


by Gregory Sirico

How new shared-parenting child custody bills may reshape family law in the state and set a national precedent.

Two children in a field holding hands with parents

Best Lawyers Expands With New Artificial Intelligence Practice Area


by Best Lawyers

Best Lawyers introduces Artificial Intelligence Law to recognize attorneys leading the way in AI-related legal issues and innovation.

AI network expanding in front of bookshelf

Finding the Right Divorce Attorney


by Best Lawyers

Divorce proceedings are inherently a complex legal undertaking. Hiring the right divorce attorney can make all the difference in the outcome of any case.

Person at a computer holding a phone and pen

Jefferson Fisher: The Secrets to Influential Legal Marketing


by Jennifer Verta

How lawyers can apply Jefferson Fisher’s communication and marketing strategies to build trust, attract clients and grow their practice.

Portrait of Jefferson Fisher a legal marketing expert

New Texas Law Opens Door for Non-Lawyers to Practice


by Gregory Sirico

Texas is at a critical turning point in addressing longstanding legal challenges. Could licensing paralegals to provide legal services to low-income and rural communities close the justice gap?

Animated figures walk up a steep hill with hand

The Future of Canadian Law. Insights from Best Lawyers: Ones to Watch Honorees


by Jennifer Verta

Emerging leaders in Canada share their perspectives on the challenges and opportunities shaping the future of Canadian law

Digital eye with futuristic overlays, symbolizing legal innovation and technology