Expert Compliance Representation – Health Care Compliance
Attorney John H. Fisher leads the Health Care Compliance Practice at Ruder Ware. John is a practicing health care attorney who has substantial expertise in the compliance area. He is certified in both Health Care Compliance and Corporate Compliance and Ethics.
Aggressive Governmental Fraud and Abuse Investigations
Government enforcement practices and ever changing regulatory requirements require health care providers of all types and specialties to function in a highly complex environment. Government enforcement operates under a “return on investment” mentality which leads to extremely aggressive and sometimes unfairly overbroad enforcement actions. This leaves even the most well intentioned health care provider feeling targeted and overburdened with regulatory requirements.
Attorney Fisher Provides a Full Range of Compliance Services
Attorney Fisher has provided a broad range of compliance related legal services to a variety of health care providers including hospitals, mental health programs, skilled nursing facilities, ambulatory surgery centers, a variety of medical groups, diagnostic facilities, home health care providers, personal care agencies, clinically integrated provider groups, accountable care organizations. Each provider has unique features and characteristics that require creative approaches to mitigate the impact of overzealous governmental enforcement and private whistleblowers.
Preparation for an Eventual External Examination of Your Compliance Process
Our compliance practice functions under the philosophy that all providers will eventually be called upon to defend their compliance programs. This may come through a self-disclosure after an infraction that is discovered through self assessment or audit. A challenge to the effectiveness of a compliance program can arise as a result of a whistleblower claim or at the hands of a government criminal or civil prosecutor. Regardless of the source of challenge, at some point in the future, a compliance program will be put to the test. When this happens, it must be effective to detect and correct potential compliance problems. This requires a well designed plan as well as a showing that the plan is actively operating to identify risk areas, audit for anomalies in areas where risk may be present, and comes full circle to take appropriate action to correct potential problems that are identified. If this is happening when your time comes; when your compliance program is put to the test, you will have gone a long ways toward mitigation of potential negative consequences.
Penalties Are Increasing and the Scope Activity Considered Abusive Continues to Expand
Some may wonder how the government plans to pay for changes in the health care system. One of the primary sources of payment in the future will be through enforcement of actual or perceived fraud and abuse. Currently, the Federal government received an 800% return on every dollar that it invests on pursuing health care fraud and abuse. With increased penalties and more draconian enforcement systems in place, the government is poised to turn the enforcement business into an even more lucrative proposition. The stage is set with laws that increase penalties to such an astronomical level that even a minor case will be settled rather than risk being dragged through a proceeding that could expose a provider to damage that are many times the amount of settlement.
The Danger of Whistleblower Claimants
Whistleblowers also are incentivized to file cases as they seek to benefit personally from provider activity that may not fully conform to regulatory expectations. No provider is immune, no matter how effective its corporate responsibility program. For these reasons, all providers need experienced Compliance Counsel to assist them in trying to prevent regulatory violations, to determine the scope of and assist with correcting identified compliance issues and to defend them in the event they do become a target of government investigative activities.
Whistleblowers can come from a number of different places. Disgruntled employees are a prime candidate to bring a whistleblower complaint. How these complaints are handled is extremely important to minimizing their potential negative impact on you operations. Once a Whistleblower attorney becomes financially committed to a case, they tend not to let go easily. Settlement can be very difficult to attain on reasonable terms. It is fair to say that in many cases the government gives more latitude to settle cases if the provider cooperates.
There are some reasonable government enforcement individuals who appropriately utilize their discretion when a provider cooperates and has not intentionally bilked the system. Whistleblowers on the other hand, have their sites set on the full maximum amount of calculated False Claims Act damages. They are looking for a pay day. We can help you avoid this type of situation altogether by helping establish an effective compliance program that takes appropriate action to mitigate exposure if infractions are discovered.