Partner Jeffrey J. Ansley and Gregory D. Kelminson, Legal Director of Compliance at Air Medical Group Holdings, Inc. and former Bell Nunnally attorney, co-authored the Health Care Compliance Association (HCCA) Compliance Today article titled, “The criminal regulatory framework.” In the piece, Ansley and Kelminson examine health care fraud, providing: a survey of governmental regulatory agencies involved and enforcement priorities; examples of individual and corporate criminal prosecution; and takeaways for ensuring compliance. Ansley and Kelminson note that health care fraud costs the United States more than $100B a year, a number that continues to rise, and that investigation and prosecution of health care fraud have become large focus area for numerous federal agencies, including the U.S. Department of Justice and the Department of Health and Human Services, with agency and inter-agency sub-groups such as the Health Care Fraud Prevention and Enforcement Action Team (HEAT) and the Medicare Fraud Strike Force actively working to tackle the issue.
In terms of how companies can best remain in compliance and protect themselves from enforcement actions, Ansley and Kelminson suggest adoption and regular refreshing of strong compliance programs noting, “compliance professionals must be on continual alert for possible fraud, because early detection and action are key to an effective response.” They go on to detail the minimum elements the U.S. Sentencing Commission uses in determining whether a company has an effective compliance program. Other suggestions offered for compliance professionals are to: routinely conduct and refresh employee training programs; have a direct chain of command, when possible; conduct internal and external audits, when feasible; and integrate compliance into a company’s culture.
Ansley and Kelminson conclude:
Healthcare providers operate in an increasingly complex and hazardous regulatory environment. As outlined above, the federal government has identified healthcare fraud—necessarily performed in close coordination with healthcare providers—as an area of intense focus for criminal and civil prosecution. This focus results from the massive and growing amount of money passing through the healthcare system on an annual basis. Since this amount will only grow as the population ages and the relative costs of healthcare continue to rise, it follows that the government’s spotlight will continue to shine on healthcare providers and healthcare fraud prosecution. As a result, smart healthcare providers will be well served to conduct close, detailed reviews of their compliance programs and protocols to ensure that they stand the greatest chance possible of standing up to regulatory or criminal scrutiny. The engagement of skilled outside healthcare counsel can ensure that providers are well positioned if and when that day comes.
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