This appears to be another close call — submitting claims for controlled substances that were never dispensed. I wonder if this had been in another district whether it would have landed comfortably in civil False Claims Act land.
https://www.justice.gov/usao-sdga/pr/dodge-county-pharmacy-and-pharmacist-agree-pay-over-2-million-resolve-false-claims-act
The harsh reality is that geography matters. DOJ does not appear to have any real criterion for determining when a criminal AUSA must be assigned to a case involving suspected health care fraud and abuse. Sure, there are guidelines – like cash kickbacks and patient harm normally fall into the purview of criminal versus civil. Yet, even those guidelines are, yes, guidelines. Cases in point: the dozens of worthless services fraud cases that are non-criminal cases involving graphic allegations of patient harm (sometimes even patient deaths) which are not assigned to any criminal AUSA. Normally, supervision and questionable AKS safe harbor cases fall into the civil bucket. Not always. There are criminal cases where lack of supervision is the core theory of the criminal prosecution. Similarly, there are criminal cases where the theory is, in part, based on conduct which purportedly violates AKS and falls outside of any applicable statutory exception or safe harbor. There should be greater uniformity and an ongoing dialogue on how such uniformity might be achieved from the top down.
Author: Andrew Feldman
Mr. Feldman represents professionals, corporations, health care providers, and health care marketers in government investigations and prosecutions throughout the United States. Mr. Feldman works tirelessly for his clients from the time an investigation begins until the time a jury renders a verdict.
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