Key Notes:

  • New federal opioid law strengthens enforcement of health care fraud laws and includes a new prohibition against referrals for private insurers.
  • This law corresponds with the federal government’s ongoing aggressive investigation into, and punishment of, health care fraud across the country.

On October 24, 2018, President Trump signed into law H.R. 6, the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (SUPPORT for Patients and Communities Act), a new law targeted at the ever-growing opioid epidemic in the United States. This omnibus law, which passed the Senate this week with nearly unanimous support after passing the House with strong bipartisan support, includes a wide range of provisions aimed at reducing opioid addiction and opioid-related deaths. The Act increases Medicare and Medicaid funding, with the goals of increasing opioid addiction treatment capacity and imposing more stringent procedures for prescribing and administering opioids and reporting their use.

Most significantly, the Act includes new enforcement provisions and funding, including a provision directing the U.S. Postal Service to screen all foreign-shipped packages for fentanyl and one authorizing the suspension of federal payments to pharmacies pending credible investigations of any type of fraud on the pharmacy’s part. This provision has significant ramifications for pharmacies that have substantial federal receipts, as investigations can often take months or years to resolve. Additionally, the Act includes a provision, the Eliminating Kickbacks in Recovery Act, which makes it a federal crime to pay for referrals to health care facilities involved in opioid treatment. This section expands on the federal Anti-Kickback Statute, which prohibits kickbacks in federal health care plans, by extending similar prohibitions to the private health insurance market. Violating the Eliminating Kickbacks in Recovery Act subjects the offender to fines up to $200,000, 10 years in prison, or both. Overall, the SUPPORT for Patients and Communities Act seeks to increase opioid-related treatment options while simultaneously strengthening federal regulatory oversight of opioids and other harmful synthetic drugs.

The enactment of the Act corresponds with other recent pronouncements by the federal government signaling its continued commitment to aggressive health care fraud enforcement. In a speech last month, Deputy Assistant Attorney General Matthew S. Miner of the U.S. Department of Justice Criminal Division, who oversees the Appellate and Fraud Sections, stated that the Health Care Fraud Unit has “already broken records” this year for indictments and convictions – 320 indictments against individuals, up from 220 last year, and 193 convictions, up from 178 last year. Miner also cited a recent $260 million global criminal and civil resolution involving a former hospital chain. In addition, he pointed to a record-breaking takedown in June that involved charges against more than 600 defendants, of whom 165 were doctors, nurses or other licensed health care professionals, which included charges related to illegally prescribed opioids. The speech closed with Miner’s declaration that the government will “remain steadfast in our commitment to holding those engaged in wrongdoing accountable,” and thus, “those who are responsible for wrongdoing or the concealment of wrongdoing will continue to be investigated and prosecuted.”

Additionally, the Medicare Fraud Strike Force expanded its operations in August, adding a 12th location in the Newark/Philadelphia region. As discussed in a prior Health Care Law Update, these Strike Forces represent a partnership between the Department of Justice’s Criminal Division, Fraud Section at Main Justice in Washington, D.C.; U.S. Attorneys’ Offices around the country; the FBI; and the Department of Health & Human Services Office of Inspector General.

These developments should signal to those in the health care industry, including in-house counsel and executives at health care companies, that the government will continue its aggressive push to seek out and punish fraud in all forms, particularly any conduct involving opioids.