Last week, the U.S. Department of Justice (DOJ) and the U.S. Department of Health and Human Services (HHS) released its annual, jointly authored Health Care Fraud and Abuse Control Program Report (the Report) for Fiscal Year 2023. Along with the Office of Inspector General’s (OIG) recently issued Semiannual Report (New OIG Priorities Emerge in Report). The Report gives providers critical insights into the Federal government’s enforcement actions, initiatives, and priorities for combating health care fraud, waste, and abuse. Given the depth and breadth of these activities, the Report demonstrates that no provider type is immune from government enforcement efforts.
In 2023, DOJ and HHS focused on a combination of recurring and emerging risk areas, which resulted in monetary recoveries in excess of $3.4 billion, and the exclusion of more than 2,200 individuals or entities from participation in Federal health care programs. Significantly, DOJ and HHS touted their respective use of data analytics to identify trends, outliers, and potential targets, and the important role analytics plays in achieving these results.
The Report highlights fraud risk areas, such as schemes involving:
- Over-the-counter COVID tests, Personal Protective Equipment, the Provider Relief Fund, and billing for unnecessary office visits or tests associated with COVID testing or vaccinations;
- Medically unnecessary diagnostic laboratory/genetic testing and drug/urinalysis testing;
- Hospitals or nursing homes improperly billing unauthorized services, services not provided, or services so inadequate they are considered grossly substandard or worthless;
- Durable medical equipment fraud involving telemedicine and/or the submission of claims for medically unnecessary equipment;
- Kickbacks to induce the use of certain home health providers or electronic health records systems, as well as misrepresentations related to the capabilities of such records systems;
- Submission of inaccurate diagnostic codes to Medicare Advantage plans to increase reimbursements;
- Medically unnecessary prescription drugs, including opioids, compounded gels, creams, pain patches, or skin substitutes, and submission of claims for drugs that were not dispensed or were misbranded/adulterated;
- Improperly billing psychiatric and psychological testing and services; and
- Providers who improperly refer or falsely certify eligibility for hospice care.
OIG will continue to focus on illegal kickback relationships between providers, suppliers, laboratories, and marketers, among others, as well as providers or entities that actively seek to circumvent Medicare enrollment requirements or hide owner identities. Meanwhile, DOJ signaled its intent to scrutinize arrangements involving complex ownership structures of health care entities, including by private equity and real estate investment vehicles.
Given the sheer volume of government oversight and investigative activities, and its increasingly refined strategies to root out fraud, waste, and abuse, providers would be well-served to perform a year-end evaluation that identifies their specific risk areas, assesses the effectiveness of their compliance programs, and makes necessary adjustments for 2025.
A copy of the complete Report is available here.
Should you have any questions regarding the above, or would like guidance on strengthening your existing compliance efforts, please contact the authors, the Garfunkel Wild attorney with whom you regularly work, or contact us at [email protected].