Genetic testing and telemedicine targeting senior citizens and individuals with disabilities have been the subject of growing government scrutiny. Most recently, on September 27, 2019, the United States Department of Justice announced charges against nearly three-dozen individuals—across numerous federal judicial districts—allegedly responsible for more than $2.1 billion in Medicare billing losses, all of which stem from misconduct in the provision of genetic testing and telemedicine services.
According to the DOJ’s press release, the federal investigation uncovered a scheme in which cancer genetic testing laboratories paid kickbacks and bribes to healthcare providers in exchange for the referral of medically unnecessary services for Medicare beneficiaries. The government alleges that, in many instances, the tests were ordered by physicians who had no treating relationship with the patients and the results of the unnecessary tests were often withheld from the beneficiaries or their actual treating physicians. The DOJ also alleges that the defendants targeted seniors and individuals with disabilities. According to the government, the patients often received scripts for genetic testing from physicians with whom they had never interacted or had had only brief telephone conversations.
View the full Alert on the Duane Morris LLP website.
As a former federal prosecutor in Chicago, I am well acquainted with the phrase “takedowns.” For the unwary, a subject-area “takedown” is a practice used by federal prosecutors to send a message to a given industry. Prosecutors investigate and prepare to charge cases in a given industry sector and then release the charges nationally on the same day along with a press release. The idea is that such public “takedowns” serve as a deterrent to future criminal activity in the industry. For example, almost every April 15th, prosecutors across the country release charges in dozens of tax-fraud cases. Continue reading Healthcare Fraud Takedowns
By Amanda L. Bassen and Michael E. Clark
In healthcare fraud prosecutions under the Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), the knowing or willful solicitation or receipt, either directly or indirectly, of any remuneration (including kickbacks, bribes or rebates) in exchange for the referral of patients for items or services covered by a federal healthcare program is a criminal offense. In the seminal case of United States v. Greber, 760 F.2d 68 (3d Cir. 1985), the Third Circuit articulated the “one purpose test,” where so long as “one purpose” of a payment is to induce a referral, a criminal conviction may be sustained under the Anti-Kickback Statute, even if there are other, legitimate purposes for the payment. Greber’s “one purpose test” has been widely adopted in Anti-Kickback prosecutions. Continue reading Supreme Court’s Materiality Standard in United Health Services, Inc. v. U.S. ex rel. Escobar May Limit Criminal Liability in Healthcare Fraud Prosecutions