November 29, 2022

Volume XII, Number 333


November 28, 2022

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Future Of Healthcare Fraud And Abuse Enforcement Is Data-Driven, Feds Say

U.S. Health and Human Services (HHS) Inspector General Christi Grimm and Assistant Attorney General Kenneth A. Polite, Jr. discussed trends and priorities in healthcare fraud enforcement at the recent American Health Law Association Fraud and Compliance Forum.

The discussion centered on the critical role that technology now plays in healthcare fraud investigation, compliance, and enforcement – and how the vast amount of data generated by the healthcare industry guides agency decisions at all stages of enforcement. Data analysis allows the government to identify instances of fraud and discern trends and outliers that may suggest fraud is occurring within an organization. 

The speakers noted that these data-driven investigations are conducted in large part not by attorneys but by information technology specialists and forensic accountants. By working alongside these “technological Sherlocks,” investigators are able to quickly identify the relevant trends so that investigations may proceed in a more timely and efficient manner.

The same holds true for healthcare entities, which can, and should, use technology to identify potential issues earlier and take action to remediate such issues before facing significant exposure to liability. According to Grimm, the most effective protections a private healthcare organization can arm itself with to combat liability include getting a firm handle on its data to assist in developing a robust compliance program and ensuring compliance officers have a voice at the table. A firm understanding of the data allows private healthcare organizations to identify and understand potential gaps, which can help an organization’s compliance program report more accurate, complete, and timely data. 

As Polite noted, “Invest in compliance early, invest in compliance often. If there is a corporate leader who fails to do so, they do so at their own risk.”

In addition, Polite indicated that a robust compliance program, starting from the top down, may have a considerable impact on settlement negotiations in the unfortunate instance that a company finds itself in front of the DOJ. An organization is in a better position to receive substantial credit if it can show it had strong data collection and monitoring standards. Further, by having a firm grasp on its data, an organization can identify concerning trends indicative of fraud before the government does. This allows the organization to self-report and take action as soon as possible, putting the organization in a favorable posture before the DOJ and HHS’ Office of Inspector General.

The speakers also emphasized the effectiveness of inter-agency cooperation during the initial stages of investigation. Grimm noted that partnerships with federal, state, and private partners have been critical in achieving the agency’s enforcement goals. Polite noted that the DOJ continues to achieve success in enforcement actions where multi-disciplinary strike forces are involved. By using data analysis techniques in smaller, more localized strike forces, the government can narrow its data analysis to allow for the identification of regional trends that may signal the presence of fraud.

Another major priority for HHS-OIG and DOJ is the desire to hold individuals accountable, as evidenced by the guidelines Deputy Attorney General Lisa Monaco shared earlier this month. Polite explained that while fraudulent schemes may have been previously localized and conducted through a single entity, they now involve numerous entities and span multiple states or countries. The goal, then, is to follow these chains of bad actors and assign appropriate responsibility and proportional punishment to all involved. 

© 2022 BARNES & THORNBURG LLPNational Law Review, Volume XII, Number 276

About this Author

John E. Kelly D.C. Healthcare Attorney Barnes & Thornburg

Chair of Barnes & Thornburg’s Healthcare Department and Industry Practice, John advises and defends companies and individuals in criminal prosecutions and civil litigation involving health care fraud and abuse issues, including the False Claims Act, Anti-Kickback Statute and Stark Law, the Food, Drug and Cosmetic Act (FDCA), the Controlled Substances Act (CSA), the Foreign Corrupt Practices Act (FCPA), and other regulatory and compliance issues. He is well versed in the needs of providers, hospitals, health systems, clinical labs, pharmacies, pharmacy benefit...

Jacquelyn Papish Federal Regulations and Criminal Justice Litigation Attorney Barnes & Thornburg Law Firm

Jackie regularly represents clients in False Claims Act (FCA) litigation and related civil and criminal investigations by the U.S. Department of Justice (DOJ), Department of Health and Human Services Office of Inspector General (HHS-OIG), Food and Drug Administration (FDA), Drug Enforcement Administration (DEA), and other federal and state regulators.  Her work is concentrated on the healthcare and life sciences industries but has spanned a number of others, including technology and financial services.

Jackie’s strength is in helping her clients feel at ease in the face of high-...

Anthony Burba Corporate Lawyer Barnes & Thornburg Law Firm

Anthony Burba is a former federal prosecutor who focuses on defending corporate and individual clients against government investigations and resolving complex compliance matters. Tony is a tireless advocate for his clients and relies on reasoned judgment and experience to help his clients through difficult times.

Tony brings experience as a white collar and healthcare fraud prosecutor for the U.S. Department of Justice’s Fraud Section, as well as nearly a decade advising large corporate clients on complex legal and compliance issues and litigation. He has worked as a part of a...


A.J. Bolan is a straight-shooter and passionate litigator who is adamant about ensuring that clients’ positions are heard and needs are met. A.J. advises and represents clients in response to government actions, investigations and claims brought under various federal and state regulations, and assists corporations and individuals in internal investigations.

In addition, A.J. regularly counsels healthcare companies – ranging from individual physician-owned entities to large nonprofit healthcare systems – on healthcare fraud and abuse matters...