LS&HC Horizons 2022 - Flipbook - Page 17
Hogan Lovells | 2022 Life Sciences and Health Care Horizons
17
Digital Health and AI
Health care digitization creates new FCA risk
The recent and rapid expansion of telemedicine and electronic health
records (EHR) – and associated potential for new types of fraud – has
caught the attention of the Department of Justice (DOJ) and the qui
tam relators’ bar, resulting in increased use of enforcement tools like
the False Claims Act (FCA).
As early as 2019, DOJ pursued enforcement actions in the telehealth
space like “Operation Brace Yourself,” which targeted a fraud scheme
concerning kickbacks to prescribe medically unnecessary braces
involving over $1.2 billion in loss. More recently, the Covid-19 pandemic
has prompted a dramatic rise in telemedicine, creating new opportunities
for potential fraud and abuse. DOJ has demonstrated resolve to use the
FCA to crack down on illicit orders for medically unnecessary braces
and cancer genetic testing in operation “Happy Clickers.” We
expect more to come.
Michele Sartori
Partner, Washington, D.C.
View the full False
Claims Act guide
Since 2009, EHR use has also rapidly expanded, encouraged in part by
over $30 billion in Congressional incentive payments to physicians and
hospitals to make meaningful use of EHR. With this new technology has
come new potential avenues for fraud. For example, Practice Fusion paid
US$145 million to resolve criminal and civil allegations of extracting
kickbacks from pharmaceutical companies in exchange for shaping
electronic clinical decision support alerts that encouraged prescriptions
for their drugs, and Coffrey Health System paid US$250,000 to settle
claims it misrepresented its eligibility for EHR incentive payments.
Despite shifts in technology reshaping patient care and records, the FCA
continues to be DOJ’s “go-to” and increasingly utilized enforcement tool
to root out alleged fraud associated with these new technologies.
Allison Caplis
Counsel, Baltimore
Hunter Davis
Associate, Washington, D.C.
