Deputy AG Branda Provides Insights into Department of Justice Enforcement Priorities at AHLA Fraud and Compliance Forum

Topics that Ms. Branda touched on in her speech included:

1. Yates Memorandum. Released on September 9, 2015, the Yates Memorandum (named after Deputy Attorney General Sally Quillian Yates, under whose signature the memorandum was released) described DOJ’s new emphasis on seeking accountability from individuals responsible for corporate misconduct. Ms. Branda emphasized that the health care industry will be seeing enhanced enforcement efforts focusing on individual liability in both the civil and criminal context, and she noted that the criminal and civil sides of DOJ will be cooperating more closely as part of this effort. She also stated that DOJ may continue to pursue individuals, even after health care organizations have reached settlement agreements with DOJ.
2. New Delivery System Models. Ms. Branda stated that DOJ is continuing to keep a close eye on the implementation of the new health care delivery system models, such as accountable care organizations (ACOs), being tested by the Centers for Medicare and Medicaid Services. As these programs evolve, DOJ’s enforcement priorities related to these programs also will continue to evolve.
3. Data Mining. Ms. Branda indicated that DOJ is enhancing its use of data mining to help combat fraud and abuse. Data mining is being used to assist in ongoing government investigations. It also is being used by DOJ in pending litigation to help establish damages. In addition, DOJ is using data mining to help identify new areas of focus for law enforcement activities.
4. Areas of increased scrutiny. Ms. Branda also discussed areas that will receive increased scrutiny from DOJ in the coming year. These areas of increased scrutiny include:
   • Medicare Advantage Program – Medicare Advantage spending increasingly is the subject of heightened scrutiny on Capitol Hill, and Ms. Branda specifically noted DOJ will be closely scrutinizing issues related to inflated Medicare Advantage plan risk scores.
     Hospice – DOJ will continue to focus on allegations of hospice providers inappropriately certifying individuals for hospice care when they do not meet hospice admission criteria.
   • Skilled Nursing Facilities – DOJ continues to be concerned about the provision of medically unnecessary care, particularly the unnecessary provision of therapy services.
   • Stark law – DOJ is particularly concerned about arrangements with physicians under which the physicians are paid more than fair market value for the services performed or where payments from hospitals clearly take into account the volume or value of referrals.

Arent Fox attorneys regularly monitor enforcement guidance and commentary from government officials for valuable insights into government enforcement priorities. The health care team has deep experience in navigating fraud and abuse laws, including the Stark law and anti-kickback statute, and in litigating federal and state False Claims Acts cases, including qui tam or whistleblower provisions. The firm routinely handles False Claims Act matters prosecuted by the Department of Justice, US Attorney’s Offices, and state prosecutors.