Once again, AHLA outdid itself and put on an excellent program at the 2015 Fraud and Compliance Forum. The program combined a unique mix of speakers from government, in-house legal and compliance personnel and outside counsel with timely and interesting presentations. Despite the breadth and depth of subject matter covered, there were a few recurring themes:
- Threat of Individual Liability: The Yates memo and the threat of individual liability was frequently discussed, from Joyce Branda’s keynote to panels on the False Claims Act and the importance of effective compliance programs. While the governmental presenters were limited in what they could say, the clear consensus was that it will change the way both the DOJ and OIG approach both criminal and civil investigations and settlements – what that change will be was less clear. From our perspective, the government has a long way to go to institute the policy perceptions of the Yates memo. The requirement to examine the role of individuals doesn’t change the fact that proving that liability, either beyond a reasonable doubt or by a preponderance of the evidence, is difficult. Similarly, the requirement that corporate defendants identify individuals responsible in order to receive cooperation credit doesn’t change the fact there may be no one person to identify. While we wait to see how the policy announced in the Yates memo is implemented by the Department, the near term effect is likely to be the disruption of investigations and settlements – even those where handshake agreements have been reached – while DOJ works through these issues.
- Tuomey and Stark: We have covered this topic numerous times on the blog. There was no clear message other than Stark compliance is more important than ever. Many panels discussing the topic expressed concern about what may happen as relators and their counsel begin to litigate more and more FCA cases and potentially take cases predicated on Stark violations to trial without the government. While this is an obvious concern for providers, in a declined case, a realtor cannot rely on receiving CMS’s support in proving a Stark law violation. If CMS were to refuse to agree that a particular arrangement violated Stark, it would severely impact the viability of such claims.
- 60 Day Repayments: The Affordable Care Act’s 60 day repayment obligations and their potential to lead to false claims liability was also front of mind for many attendees. Again, presenters expressed concern about FCA cases based on alleged failure to comply with this rule being brought by relators, especially in light of the Healthfirst court’s literal interpretation of the rule . Several government presenters sought to downplay some of these concerns, stating that they expected providers to make a “good faith” effort to comply. In the absence of clear direction from CMS on its interpretation and implementation of the 60 day repayment rule, however, courts will have no guidance in the face of a very onerous requirement and the decision in Healthfirst. These cases, particularly declined cases pursued by relators, have the potential to be much more concerning to providers until CMS issues its guidance.
- Establishing Compliance Programs: Finally, as can be expected many presenters and panels underscored the importance of a good compliance program. This wasn’t limited to the compliance professionals in attendance. It was a mantra preached by the government and outside defense counsel. The government continues to view a robust compliance program as being important.