Parallel proceedings — a term for simultaneous criminal, civil and administrative investigations — are a widespread government practice that are now occurring with greater frequency in healthcare fraud investigations, according to a Jones Day report
The government increasingly employs a three-pronged strategy in healthcare fraud cases: it prosecutes responsible healthcare organizations and people, collects civil damages and penalties from those same targets and imposes administrative sanctions such as exclusion from federally funded programs or compliance agreements.
Long-standing Department of Justice policies promote early collaboration and information sharing between its criminal and civil divisions, as well as between the criminal and civil divisions of each individual
In light of the government's authority and propensity to investigate healthcare companies for violations of both civil and criminal healthcare fraud statutes, it is imperative healthcare organizations are prepared to wage a two-front war in any government investigation, according to the report.
When a healthcare fraud case is brought as a parallel proceeding, the healthcare organization must request a global resolution of all existing matters under the investigation during settlement negotiations, according to the report.
In negotiating a global resolution in a healthcare fraud investigation, it is important to remember criminal, civil and administrative authorities have different policy mandates, different burdens of proof and different sanctions at their disposal, according to the report.
It is also important to confront collateral consequences as early as possible because being excluded from Medicare or debarred from future government business can be a death knell for a healthcare company whose existence is dependent upon billing federal healthcare programs or obtaining future government contracts, according to the report.
In criminal matters, the type of resolution reached with the DOJ and the scope of the factual basis in any agreement are two critical factors impacting exclusion and debarment. Likewise, in civil settlement, HHS' Office of the Inspector General considers ongoing corporate efforts to fight fraud and adherence to agency compliance program guidance, according to the report.
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