Tips for navigating new anti-fraud landscape

Lawrence Friedman, assistant director in the civil fraud section of the Department of Justice, offers some advice that providers would be well served to heed regarding the emerging health care anti-fraud landscape:

• "Don’t negotiate a federal case and think that at the last minute you’ll sneak in and get a Medicaid release." Don’t think a deal with the feds will bind the states or that the states will be deferential, because they won’t, Friedman warns.

Likewise, Friedman says, providers shouldn’t think cutting a deal with state prosecutors necessarily will be the end of the problem, even though at times the feds will act with deference, especially in areas where the federal government is very active such as drug pricing and kickback issues.

"Make sure you coordinate," he says. "You are not going to bypass the assistant U.S. attorney by making a deal with the state prosecutor."

• "Don’t assume the feds won’t do a Medicaid-only case." Friedman says that he is increasingly seeing Medicaid-only allegations. "We have authority, and we pursue the federal share of Medicaid," he says. "We are very interested in Medicaid, so don’t assume that is just a state issue."
• "Don’t ignore other non-Medicare state and federal agencies." Friedman says that in addition to Medicaid, hospitals also should consider TRICARE, FEHP, and other federal programs. "Don’t forget that our view is that if one program is harmed, it is very likely that many are," he explains.

In short, Friedman says that providers must consider the impact these interrelated negotiations will have on a possible voluntary disclosure, other investigations, and the overall defense.

"Even if it is an ultimately reasonable resolution, don’t shortcut it," he warns. "That is not going to help you. It is going to hurt you. It is going to delay things and make you put money in escrow or put money up with nothing in return. Don’t play that game."