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Q&A: FCA Specialist Jacques Smith on Perils, Precautions for Health Care Industry

The National Law Journal spoke with Arent Fox Complex Litigation Practice Leader Jacques Smith last week about key trends in FCA enforcement for the Health Care industry. NLJ reported that Jacques, “a leading False Claims Act practitioner, said the combination of the COVID-19 pandemic and ascent of new leadership at the Department of Justice have created new challenges for the nation’s health care industry.” Highlights from their Q&A can be found below. 
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What Are You Discussing With Your Clients?

We think corporations are going to be very busy responding to subpoenas, and we think defense firms like ours are going to be very busy advising them on investigations. But even more important is putting in good compliance plans ahead of time, knowing that this is coming, and they need to get ahead of it.

[Smith said it’s not only government scrutiny linked to the pandemic-fueled boom in telemedicine, CARES Act oversight and massive infusions of cash for Operation Warp Speed vaccine development spurring concern.]

The corollary to that is that whistleblowers know there’s been about $6 trillion in government spending pumped into the economy, and they’re going to be out there looking at where that money went, how it’s been accounted for and speaking to the government if they see irregularities. 

We also anticipate that the new Congress will shift to oversight, oversight, oversight, especially over the private sector. Whether it’s private health care, pharmaceutical companies, banks and the like, we’re assuming a more robust oversight will concentrate on rooting out perceived abuse.

It will be very much akin to the Obama administration during the Great Recession and after the TARP [Troubled Asset Relief Program] bailout, when we were very busy defending banks and health care companies. The whistleblower bar will definitely increase.

What Do See Over the Horizon for FCA Litigation?

In 2020, False Claims Act recoveries totaled more than $2 billion; there were over 900 new FCA actions, including about 672 qui tam [whistleblower] actions. The Department of Justice has made it very clear that it will continue to emphasize on misconduct and focus very specifically on COVID-19 relief funding: ‘What were the representations made by the people who took that  money, what were the requirements [for taking it]?’”

We’re telling our clients they should always be very pragmatic about where they get their money: Get it from other commercial sources without a lot of strings, if possible. As Michael Granston said, “the government is going to want to know every penny is accounted for.”

What Advice Can You Offer for Companies or Individuals Who Find Themselves Under DOJ Scrutiny?

Cooperation is so important for our clients. [An investigation can start] from sources, including a hotline tip or a subpoena. The key is to immediately launch a credible investigation; and the company must always keep backup records. The DOJ has long had a policy emphasizing cooperation. Even if there’s something there, if you voluntarily disclose, you’ll get credit; if you respond with remedial measures, you’ll get credit.

Read The Full Q&A

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