Our Morgan Lewis Health Law Scan team prays everyone is staying sane and healthy, and our hearts and admiration go out to our healthcare friends battling the challenges of the Coronavirus (COVID-19). These times are deeply worrying and inspiring at the same time.
In the middle of a battering week last week for healthcare providers, we received communications from various US Department of Justice (DOJ) offices for service of new subpoenas for several clients. Yep, even though our DOJ friends are working remotely it’s apparently business as usual. These actions show a need for DOJ leadership to set a consistent and practical enforcement stay policy for all non-urgent civil enforcement matters that recognizes the public health challenge healthcare providers and their employees are facing right now. The Texas Office of Inspector General did just that for state investigations, audits, inspections, and medical reviews.
Given that most civil enforcements are FCA healthcare qui tams—which will likely be declined eventually given the consistent 80% declination rate—why is the DOJ imposing additional burdens on over-taxed, stressed-out healthcare providers? I know that DOJ attorneys are reasonable, approachable, and work hard every day to do the right thing. But we all know too there are often significant inconsistencies in enforcement approaches. We also know that criminal justice issues are at a nadir so the need to push non-urgent civil enforcement is even more baffling.
Healthcare providers are fighting this pandemic, for all of us. Distracting them with civil investigative activity now has no practical justification. We do not want to put people at risk either requiring them to go into offices to collect records or deal with investigation issues when many jurisdictions are requiring employees to stay home and engage in social distancing. Not to mention managing the stressed out healthcare workforce right now. And it’s not helpful for government lawyers to say they will work out deadlines on a case-by-case basis “as we always do” when these are not “how we always do” times.
For healthcare providers, it is all hands on deck to save patients, families, employees, and their over-burdened organizations, and there is no time or money or resources to process civil subpoenas, big or small. Let all those terabytes of data rest awhile longer.
The DOJ should immediately issue a 90-day stay of non-urgent civil enforcement investigations. Sure, the relator’s bar may complain, but the DOJ has an able task force to address urgent COVID-19 fraud scams and that should be the focus. Good judgment compels tweaking enforcement policy when there is a pandemic pushing our healthcare system to the brink. As the late Kenny Rogers beautifully sang, “You gotta know when to hold ’em.”
As you know, we have launched a Coronavirus COVID-19 resource page to help keep you current on unfolding developments and the novel legal issues they create.
