FMV and the ABA’s Annual National Institute on Health Care Fraud

The American Bar Association’s 33rd Annual National Institute on Health Care Fraud was held in Chicago on May 4, 2023. Deputy Assistant Attorney General Lisa H. Miller delivered remarks emphasizing the crackdown on healthcare fraud as a top priority of the Department of Justice (DOJ). DAAG Miller specifically highlighted the DOJ’s focus on schemes affecting vulnerable populations including sober homes fraud, illegal prescribing of controlled substances, and hospice fraud, through concerted efforts of Health Care Fraud Strike Forces. According to Miller, since their inception, these Strike Forces — DOJ partnerships with federal and state law enforcement agencies — have charged more than 5,000 defendants who collectively billed more than $24 billion to federal health care programs and private insurers. She explained that “kickbacks corrupt medical professionals’ judgment and erode patients’ ability to choose and receive the care that they deserve.”

In tandem with her lengthy discussion of ongoing enforcement efforts and victories, Miller addressed the January 2023 changes to the Criminal Divisions Voluntary Self-Disclosure and Corporate Enforcement Policy (“CEP”). The new CEP emphasizes the benefits of cooperation and self-disclosure to organizations in circumstances of misconduct and expands the opportunity for the best possible outcome for these organizations — declination of the DOJ to prosecute to include cases — to include organizations with aggravating factors. DAAG Miller expressed:

“Specifically, if a company with aggravating factors immediately self-reports the misconduct, demonstrates extraordinary cooperation and remediation, and has in place an effective compliance program both at the time of the misconduct and the disclosure, then it may still receive a declination under the CEP. And unless a company has aggravating factors, to obtain a presumption of a declination, the standard remains that a company need only make a timely self-disclosure.”

Additionally, the Deputy Assistant Attorney General explained:

“Under our revised CEP, even where a company does not voluntarily self-disclose, if it fully cooperates and remediates, our policy doubles the maximum possible fine reduction – from 25% to 50% – and will allow our prosecutors to differentiate more clearly among companies.”

DAAG Miller concluded her remarks with a plea to attendees for the encouragement of compliance best practices:

“Help guide your clients. Be a force for good inside your organization. Empower your compliance team.”

“An ounce of prevention is worth a pound of cure.”

“An ethical culture drives an effective compliance program, and a compliance program cannot be effective without the full support and buy-in from the business. Companies that prioritize embedding ethical values throughout their operations are more successful at implementing and sustaining effective compliance programs.”

“The key point, whether or not a company self-discloses, is that companies fare far better when they show that they’re serious about compliance, cooperation, and remediation.”

The Moral of the Story and FMV

It stands to reason that a well-oiled compliance department can add significant value for healthcare-related industry players — even simply as a show of good faith. Building on that assumption, a key component of strategic healthcare compliance programs is systematically seeking a third-party opinion of fair market value, volume or value standard, and commercial reasonableness for provider service arrangements. BFMV is experienced in the valuation of professional healthcare service arrangements, including compensation for physicians and other advanced practice providers. Along with consulting and valuation services, we offer resources that are especially helpful during this hyper-vigilant period. For example, given that hospice compliance was a specific topic mentioned during the Deputy Assistant Attorney General’s remarks, flip through our free eBook: Compensation Philosophies for Home Health and Hospice Medical Directors. Contact us for more information or assistance.