Monday, Nov. 26, 2012: Elisse Walter was selected by Barack Obama to become the head of the Securities and Exchange Commission, replacing Mary Schapiro, who served as the head since being appointed in 2009. Ms. Schapiro lead the SEC through the creation of its new whistleblower program, which issued its first award in August of this year. Ms. Walter was appointed to the SEC in 2008 by President Bush and has served with Ms. Schapiro during her tenure. Hopefully, the SEC whistleblower program will continue to grow under Ms. Walter’s leadership. A copy of the 2012 Annual Report on the Dodd-Frank Whistleblower Program can be found here. A copy of the SEC Enforcement Manual can be found here.
Tuesday, Nov. 27, 2012: The United States Department of Health and Human Services, Office of the Inspector General, issued its semiannual report to Congress, reporting on its activities from April through September of 2012. Daniel Levinson, the Inspector General, wrote that the “OIG has been at the forefront of the Nation’s efforts to fight waste, fraud, and abuse in Medicare and Medicaid and the more than 300 other HHS programs.” Among other highlights, the OIG announced expected recoveries of almost $7 billion from audits and investigations, and the exclusion of over 3,000 individuals from participating in federal healthcare programs.
Wednesday, Nov. 28, 2012: The Washington Post published a story about the Department of Justice’s lawsuit against the Gallup Organization, the well-known polling company, for fraudulently inflating the prices it charged the Treasury and State Departments for polling services it performed. The alleged scheme was brought to the attention of the government by Michael Lindley, a former Gallup employee, who came forward more than three years ago, represented by Janet Goldstein and Rob Vogel of Vogel, Slade & Goldstein, and David Marshall of Katz, Marshall & Banks. The government alleges that Gallup artificially created high estimates of the cost of the work it was to perform in order to obtain higher contract prices. The government joined Mr. Lindley’s lawsuit in August (see DOJ press release.) Gallup, which depends heavily on its reputation for accuracy and integrity, is also facing criticism based on its polling numbers just before the November presidential election.
Thursday, Nov. 29, 2012: The United States Department of Health and Human Services, Office of the Inspector General, issued a report suggesting that Medicare will face significant difficulty administering the electronic health record ("EHR") incentive program. See "Early Assessment Finds that CMS Faces Obstacles in Overseeing the Medicare EHR Incentive Program." The incentive program, established as part of the American Recovery and Reinvestment Act, is designed to encourage medical professionals to convert to the effective use of electronic medical records. CMS already has paid approximately $4 billion in incentive payments, and estimates that it will have paid a total of $6.6 billion in incentive payments before 2016. To qualify for the incentive payments, healthcare providers self-report data to demonstrate that they meet program requirements: 1) possess certified EHR technology; and 2) "meaningfully use" that technology, as defined by CMS. The OIG report is critical of CMS for administering the program using a self-reporting, or "pay and chase" approach, which is how CMS pays for almost all Medicare claims. The OIG suggested, among other things, a certain level of pre-payment review. CMS, however, disagreed with the suggestion. EHR incentive payments may be the subject of increased OIG scrutiny, and a new wave of False Claims Act complaints.
Friday, Nov. 30, 2012: The Department of Justice joined a lawsuit filed in the Eastern District of Tennessee against Life Care Centers of America, Inc. to recover millions of dollars paid to the nursing home operator for services that were allegedly not medically reasonable and necessary and not "skilled" in nature. The case was brought to the DOJ by two former Life Care employees. Included in the complaint are allegations that the company pressured its therapists to hit targets, or benchmarks, for the most expensive rehabilitation services, and in doing so, submitted bills for services that were not medically necessary. Nursing home fraud and skilled rehabilitation therapy fraud continue to be frequent targets of DOJ investigations and lawsuits.