False claims act settlements underscore honesty as the best policy

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July has seen recording setting temperatures across the nation. July 2023 DOJ enforcement actions for False Claims Act (FCA) violations are also bringing the heat. The two cases highlighted below were brought by whistleblowers through their counsel under the FCA’s qui tam provision. Although they involve different violations of the FCA, there are similarities: (1) false statements that were included on claims submitted for payment from Medicare and other government programs; and (2) inadequate safeguards to prevent the fraud from occurring.

The two matters are as follows:

• July 14, 2023 - NextGen Healthcare, Inc., an Electronic Health Record (EHR) vendor paid $31 Million.NextGen resolved allegations that it violated the FCA “by misrepresenting the capabilities of certain versions of its EHR software and providing unlawful remuneration to its users to induce them to recommend NextGen’s software.” Noted as being an integral part of today’s health care system, EHRs are vital to the storage and transmission of protected health information, which in turn, substantiates the claims that are ultimately filed for payment. Stemming back to 2009, incentive payments to eligible health care providers that “adopted certified EHR technology and met certain requirements [i.e., technical, administrative and physical safeguards required under HIPAA and the HITECH Act and as illustrated in the Coffey Case (D. Kan.)] relating to their use of the technology. Notably, the complaint alleges that NexGen obtained its false software certification in connection with the 2014 Edition certification criteria. The software lacked some requisite functionalities including: “the ability to record vital sign data, translate data into required medical vocabularies, and create complete clinical summaries.”
  The other facet of the complaint were Anti-Kickback Statutes (AKS) violations. Specifically, giving credits in the ballpark of $10,000 if a referral led to a new customer and more classic kickbacks such as tickets to sporting events and entertainment.
• July 12, 2023 – Diversicare and Two Occupational Therapy Assistants Paid $1.3 Million plus. With nearly 43 locations in five (5) states, Diversicare and its subsidiaries constitute “a group of private companies providing long-term care and rehabilitation services.”Prior to March 1, 2023, it operated the Canterbury Health Care Facility in Phenix City, Alabama. At issue in this case were the alleged falsification of “occupational therapy records when they clocked into work at [the] Canterbury facility, left the premises, and “moonlighted” for other home health care companies in the area, meanwhile billing for services at Diversicare that they did not perform.” In turn, the company was aware of the practices and submitted false claims to Medicare for payment for services that were never rendered. In essence, a factually false claim.

In sum, these two FCA cases underscore the importance of having a substantive compliance program to avoid the respective conduct in the first place. Honestly is always the best policy, especially when the types of violations are known to be material to the government’s willingness to pay.

Rachel V. Rose, JD, MBA, advises clients on compliance, transactions, government administrative actions, and litigation involving healthcare, cybersecurity, corporate and securities law, as well as False Claims Act and Dodd-Frank whistleblower cases.