In May 2021, U.S. Attorney General Merrick B. Garland announced the establishment of a COVID-19 Fraud Enforcement Task Force to “marshal the resources of the Department of Justice” through partnership with other government agencies to enhance enforcement efforts against pandemic fraud. 7 The Attorney General emphasized that the Task Force will augment existing mechanisms within DOJ to pursue these matters and noted that Task Force members include civil and criminal DOJ attorneys, the Federal Bureau of Investigation (FBI), Department of Labor, Department of Treasury, Homeland Security, the Small Business Administration, the newly created Special Inspector General for
CARES Act enforcement actions in 2021 targeted the alleged misappropriation of funds beyond authorized uses for COVID-19 funding, obtaining multiple loans beyond limitations imposed during funding phases, and making false statements to obtain COVID-19 funding.
Pandemic Recovery (SIGPR) 8 and the Pandemic Response Accountability Committee (PRAC), 9 and others. In short, for the largest distribution of economic funding by the government in our history, DOJ will have far more resources to review and investigate the eligibility and use of COVID-19-related funding than typically available for civil and criminal investigations. CARES Act enforcement actions in 2021 targeted the alleged misappropriation of funds beyond authorized uses for COVID-19 funding 10 , obtaining multiple loans beyond limitations imposed during funding phases 11 , and making false statements to obtain COVID-19 funding. 12 While only one of these involved a healthcare provider, we anticipate an increase in FCA healthcare investigations related to COVID-19 funding for years to come, as the government is just beginning its review and focus on specific uses of COVID-19 funding. September 2021 marked some of the first reporting deadlines for funding recipients with subsequent deadlines scheduled through 2023, depending on the date COVID-19 funding was received. 13 The final distribution of $9 billion in COVID-19 relief funds to healthcare entities was released on December 14, 2021, with corresponding reporting obligations scheduled for 2023. 7 https://www.justice.gov/opa/pr/attorney-general-announces-task-force-combat-covid-19-fraud. 8 The Special Inspector General for Pandemic Recovery (SIGPR), was created by the CARES Act to conduct, supervise, and coordinate audits and investigations related to any program or funding under portions of the CARES Act, and includes broad subpoena power. See , https://www.sigpr.gov/. 9 The Pandemic Response Accountability Committee (PRAC) was created by the CARES Act to support and coordinate independent oversight of the more than $5 trillion pandemic relief spending. See , https://www. pandemicoversight.gov/. 10 https://www.justice.gov/opa/pr/owner-jet-charter-company-settles-false-claims-act-allegations-regarding- misappropriation. 11 https://www.justice.gov/usao-edva/pr/Virginia-company-agrees-settle-civil-fraud-allegations-paycheck- protection-program. 12 https://www.justice.gov/usao-edca/pr/bakersfield-medical-practice-agrees-resolve-false-claims-act- allegations-involving. 13 https://www.hrsa.gov/provider-relief/reporting-auditing.
ISSUES TO WATCH There are a number of key issues that will have a significant impact on how healthcare fraud matters are prosecuted and defended in the coming year. CARES ACT/COVID-19 RELIEF DOJ has scrutinized the receipt and use of the historic and unprecedented CARES Act funding and civil and criminal enforcement actions have followed. As anticipated in last year’s Review, pandemic-related fraud has become an enforcement priority with the government devoting significant personnel and resources to this effort and investigations and settlements increasing. In his presentation at the Federal Bar Association’s Qui Tam Conference in February, Acting Assistant Attorney General Brian M. Boynton highlighted DOJ’s top priority areas for enforcement, noting that the “inevitable fraud schemes” stemming from COVID-19-related funding would likely include false representations related to eligibility, misuse, and false certifications, all of which constitute the type of misconduct the FCA “has long been used to address.” 6
6 See presentation of Acting Assistant Attorney General, DOJ Civil Division, at Federal Bar Association’s Qui Tam Conference (Feb. 17, 2021) (highlighting DOJ’s top priority areas for FCA enforcement in 2021), https://www.justice.gov/opa/speech/acting-assistant-attorney-general-brian-m-boynton-delivers-remarks- federal-bar.
HEALTHCARE FRAUD & ABUSE REVIEW 2021 BASS, BERRY & SIMS | 3
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