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Volume XI, Number 265


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Anti-Fraud Enforcement in the Coronavirus Era

In times of crisis, there are heroes, villains, victims, and everyone in between. Amidst the COVID-19 crisis, many valiant efforts are under immense time pressure—to care for the ill, to protect the vulnerable, to find and test new treatments, to screen for illness, to manufacture and distribute supplies, to formulate and produce vaccines.

Despite the time urgency of these efforts, companies cannot let compliance programs and compliance vetting fall by the wayside. The False Claims Act passed in 1863, in the middle of the American Civil War, to deter, punish, and prevent fraud on the United States at that time of emergency. Notable Civil War era fraud included sales of defective weapons, manufacture of deficient blankets, and provision of sick horses to the Union army.

On Friday, the Department of Justice (DOJ) issued a press release urging the public to report suspected fraud schemes related to COVID-19 and announcing that each U.S. Attorney has been directed to appoint a Coronavirus Fraud Coordinator and to prioritize the investigation and prosecution of Coronavirus-related fraud schemes. DOJ listed example fraudulent schemes, such as false statements of Coronavirus cures and medical providers obtaining patient information for COVID-19 testing and then using that information to fraudulent bill for other tests and procedures.

United States Attorney’s Offices across the country are at the ready. They have issued specific COVID-19 fraud notices, including soliciting tips from people who believe they are victims, and providing pointers to avoid falling victim to a fraudulent scheme. Examples include the Central District of California, the Northern District of Illinois, and the Western District of Pennsylvania. But, as we know from defending against meritless whistleblower complaints, one person’s perception of fraud may be another’s effort to do the right thing in a time of crisis.

Enforcers are paying attention during the COVID-19 crisis, and those looking to help must ensure that first, their intentions are good, and second, their good intentions are not misconstrued. Our advice to companies? Don’t forget compliance basics such as:

  • Ensuring new, hurried arrangements do not appear to violate the Anti-Kickback Statute, such as arrangements wherein supplies or staff are provided to referral sources or discounted to encourage referrals.

  • Exercising quality control over newly produced equipment and pharmaceuticals.

  • Billing claims only for medically necessary goods and services.

  • Documenting your good faith rationale for business decisions.

Such measures serve many purposes: improved patient care, good stewardship of government funds; and the diminishment of the chances that good intentions will later be thrown into doubt. We applaud health care industry members and others for their quick actions and caveat they should continue to be thoughtful from a compliance perspective.

© 2021 Foley & Lardner LLPNational Law Review, Volume X, Number 83

About this Author

Lori A. Rubin, litigation lawyer, false claims act, attorney, Foley law firm
Senior Counsel

Lori Rubin is an associate and litigation lawyer with Foley & Lardner LLP. Ms. Rubin’s practice focuses on False Claims Act investigations and litigation. She also has particular experience in website compliance with the Americans with Disabilities Act and the Rehabilitation Act. She is a member of the Business Litigation & Dispute Resolution Practice, the Government Enforcement Compliance & White Collar Defense Practice, and the Health Care Industry Team.

Lisa Noller, Trial Lawyer, Foley Lardner Law Firm

Lisa Noller is a trial lawyer and investigator with Foley & Lardner LLP, where she is chair of the Government Enforcement, Compliance & White Collar Defense Practice. She has spent almost 20 years investigating, litigating and trying complex criminal and civil cases, including responding to government investigations, conducting corporate internal investigations, and persuading the government not to pursue clients. When cases proceed to trial, Ms. Noller also has significant experience successfully trying a wide variety of over 30 civil and criminal matters in...

Thomas F. Carlucci, Foley Lardner, Health Care Fraud Lawyer, Off Label Marketing Attorney,

Thomas F. Carlucci is a partner and litigation attorney at Foley & Lardner LLP where he is managing partner of the San Francisco office. Mr. Carlucci represents corporations, organizations and individuals in white-collar matters and internal investigations with an emphasis on potential health care fraud, tax fraud, off-label marketing, and false claims. He also focuses on civil state and federal tax litigation.

Michael P. Matthews, Foley Lardner, False Claims Act Litigation lawyer, Securities Class Action Attorney

Michael P. Matthews is a partner with Foley & Lardner LLP and serves as chair of the Tampa Litigation Department and as chair of the firm’s False Claims Act Litigation group. As a member of the firm’s Government Enforcement, Compliance & White Collar Defense and Securities Enforcement & Litigation Practices, Mr. Matthews represents individual and corporate clients in a variety of government enforcement and securities litigation matters, including False Claims Act litigation, securities class actions, shareholder derivative actions, SEC enforcement matters,...

Jessica Joseph, Foley Lardner Law Firm, Boston, Healthcare and Litigation Law Attorney

Jessica Joseph is an associate and litigation attorney with Foley & Lardner LLP. Ms. Joseph is a member of the firm’s Business Litigation & Dispute Resolution, Health Care, and eDiscovery & Data Management Practices.

Previously, Ms. Joseph served as a summer associate in Foley’s Orlando office. Ms. Joseph has also interned with the Office of Audit and Investigation of the United Nations Development Programme, where she provided legal support for investigations into various types of internal misconduct by UNDP employees and officials...