FCA Deep Dive

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To foster open and honest communications with counsel, it is critically important that those communications are protected from disclosure by the attorney-client privilege.  But, not every communication with counsel is privileged, and knowing when a communication with counsel is protected can sometimes prove difficult.  Given an increasingly complex regulatory landscape, more and more attorneys—particularly in-house attorneys—are wearing dual hats as both lawyers and business advisors.  As a lawyer, communications  may be privileged; but if acting as a business advisor, communications may be subject to disclosure.

Since the corporate setting doesn’t lend itself to bifurcating legal and business communications, what happens when the lines are blurred or when a communication serves both purposes?

The “Primary Purpose” Test

Many courts, like the U.S. Courts of Appeal for the Second, Fifth, Sixth, and D.C. Circuits, require that for a communication to be protected by the attorney-client privilege, the “primary purpose” of the communication must be to give or receive legal advice. Attorney-client privilege does not apply to business, commercial, or tax advice.  Under this method of analysis, courts look to the content of a communication to determine its predominant or primary purpose.Continue Reading Reminder: When Are Communications with Corporate Counsel Privileged?

We released our Healthcare Fraud & Abuse Annual Review earlier this month. To serve as a companion to the Review, we’re hosting a complimentary webinar on Thursday, February 18, 2021 from 8:00-10:00 a.m. PT / 10:00 a.m.-12:00 p.m. CT / 11:00 a.m.-1:00 p.m. ET. that will take a deeper dive into key focus areas covered…

Bass, Berry & Sims is pleased to announce the release of the newest edition of its Healthcare Fraud & Abuse Annual Review examining important healthcare fraud developments in 2020. Compiled by the firm’s Healthcare Fraud Task Force, the Review provides an in-depth and comprehensive analysis of the past year’s court decisions involving the False…

One of the first indicators that may tip off a healthcare provider or government contractor that their organization may be the subject of a False Claims Act (FCA) investigation is contact with a government investigator.  That contact may take many forms – service of a subpoena or Civil Investigative Demand (CID), an interview of an employee, or simply a phone call by a government regulator or investigator.  How an organization responds to those earliest contacts often sets the tone for how the government investigation unfolds.

Organizations with well-developed policies and procedures addressing how the organization will respond to contacts by government regulators often have a more orderly process to guide the organization in responding to government investigations (referred to herein as a Government Response Policy).  A Government Response Policy can set a clear tone of cooperation by the organization with any appropriately authorized government inquiry, while at the same time making clear that the organization will assert all protections afforded by law in any such investigation or inquiry.  And, a well-crafted Government Response Policy also can make clear to employees that concealment, alteration or destruction of information or the making of false or misleading statements to regulators will not be tolerated.

An effective Government Response Policy depends upon educating employees regarding the types of contacts that an organization or an employee may receive from government regulators and on establishing clear points of contact and lines of communication within the organization.  Typically, the organization will establish its legal department as a central point of contact for government inquiries or investigations (and organizations without a legal department would have to think through an alternative appropriate point of contact) as the entity within the organization best suited to coordinate the organization’s response either directly or through outside counsel.  Below we provide broad principles and guidelines that should be considered in preparing an organization’s Government Response Policy.

This post contains five parts and looks at the following:

  • Responding to a subpoena or CID.
  • Responding to visits by investigators at an office/facility.
  • Responding to a search warrant.
  • Responding to an interview request.
  • Responding to inbound calls from government officials.

Continue Reading An Ounce of Prevention: Effective Corporate Policies for Dealing with Government Investigations and Inquires

Access RecordingIt is safe to say that 2020 has been nothing short of challenging for the healthcare industry, especially when it comes to maintaining data privacy and security. Among countless other areas, the impact of COVID-19 has resulted in a spike in telehealth options, creating more vulnerabilities for the security of patient data. More than ever,…

Please join us for the 6th Annual Nashville Healthcare Fraud Conference hosted by Bass, Berry & Sims and the Tennessee Hospital Association. Because we are unable to provide an in-person forum due to ongoing concerns resulting from the COVID-19 pandemic, we are converting the conference to a virtual platform.

We are excited about this year’s complimentary CLE program, which will provide the same caliber of practical advice, insight into significant fraud and abuse issues facing healthcare professionals, and thoughtful discussion from industry panelists for which this conference is known.

Additionally, for the first time, we are expanding the conference to two days with the first day focused on providing a primer, covering healthcare fraud and abuse matters for attorneys newer to the industry or practice. Topics will include conducting effective internal investigations and an overview of the False Claims Act.

The second day will follow our traditional format of providing practical tips and takeaways regarding healthcare fraud enforcement, including:

  • Our annual review of the most important healthcare fraud issues from the prior year.
  • Effective management of healthcare investigations during the COVID-19 pandemic.
  • How the COVID-19 pandemic has impacted the government’s perspective on healthcare fraud matters.
  • Implications and potential risk exposure stemming from CARES Act funding.

Click here to view the current agenda.

At the conclusion of the conference on December 3, we will be offering breakout sessions to further the dialogue on subject matters important to you. Please be on the lookout for communications regarding breakout session details.Continue Reading [REGISTER NOW] Healthcare Fraud Conference | December 2-3, 2020

This is the second post of a two-part discussion of recent developments related to the materiality standard set forth by the Supreme Court in Universal Health Services v. U.S. ex rel. Escobar.  Read our previous post, which covered appellate court decisions and key decisions related to government knowledge and payment.

Courts Take Differing Approaches to the Significance of Government Intervention Decisions

In assessing the False Claims Act’s (FCA) materiality element, courts have increasingly taken divergent approaches to analyze the significance of the government’s decision about whether to intervene in a qui tam action.

In several 2019 decisions, district courts held that the government’s decision to intervene in a qui tam action was relevant – even if not dispositive – to the materiality analysis under Escobar.  In U.S. ex rel. Longo v. Wheeling Hospital, Inc., for instance, the U.S. District Court for the Northern District of West Virginia found that the government’s decision to intervene in the very qui tam action before it “strongly militate[d] in favor of materiality.”  And in U.S. ex rel. Arnstein v. Teva Pharmaceuticals USA, Inc., the U.S. District Court for the Southern District of New York explained that the government’s decision to intervene in “a factually similar case” in the same district “provide[d] strong evidence that AKS [Anti-Kickback Statute] violations were material to the Government’s payment decisions,” even though the government had not intervened in the case before the court.Continue Reading Escobar’s “Rigorous” Materiality Standard: Recent Developments – Part Two

The financial relief programs enacted by the Coronavirus Aid, Relief, and Economic Security (CARES) Act stand ready to provide crucial financial support to people and businesses impacted by the novel coronavirus (COVID-19) pandemic and the resulting economic downturn.   These new federal programs recognize the scale of the challenges presented by the COVID-19 outbreak.

While decisions made by companies seeking CARES Act or similar relief may not be scrutinized today, we are likely to see a wave of COVD-19-related criminal and civil enforcement actions in the coming months and years.  Impacted individuals and businesses should remember that the urgent need for relief does not eliminate the importance of compliance or the likelihood of significant regulatory oversight in the future.

More specifically, applicants for CARES Act relief must certify or attest to certain facts relevant to their eligibility to participate in the CARES Act’s various programs.  Because false certifications or attestations potentially expose an applicant to liability under the federal False Claims Act (FCA), it is critical that impacted individuals and entities take reasonable steps to ensure the accuracy of information and certifications contained in any applications for federal aid.Continue Reading The CARES Act and Risk of FCA Exposure

As the impact of the COVID-19 pandemic continues to spread, the federal government is preparing to take unprecedented action to curb its effects on the nation’s health and economy by freeing up federal dollars for private businesses, manufacturers and healthcare entities of all types. But, those receiving these dollars, directly or indirectly, should continue to monitor updates to and maintain compliance with all applicable laws and regulations as this unprecedented economic response comes with heightened scrutiny and potential enforcement and regulatory risk.

DOJ Prioritizes COVID-19 Wrongdoing

On March 16, the United States Attorney General issued a memorandum to all U.S. Attorneys prioritizing the detection, investigation and prosecution of wrongdoing “related to the current pandemic.”  Attorney General Barr also issued a press release on March 20 urging the public to report suspected fraud schemes related to COVID-19. Among the schemes, Attorney General Barr encouraged the public to report were any medical providers “fraudulently bill[ing]” tests and procedures.Continue Reading COVID-19 and the False Claims Act

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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