Departments of Justice and Health and Human Services Announce Interim Resolution Agreement in Environmental Justice Investigation of Alabama Department of Public Health

Source: United States Department of Justice News

The Departments of Justice and Health and Human Services (HHS) announced today an interim resolution agreement in their environmental justice investigation into the Alabama Department of Public Health and the Lowndes County Health Department (collectively ADPH) in Lowndes County, Alabama. ADPH cooperated throughout the investigation and agreed to the interim resolution agreement that puts ADPH on a path forward towards ensuring the development of equitable and safe wastewater disposal and management systems in Lowndes County. 

In November 2021, Justice Department and HHS launched an investigation into whether ADPH’s conduct violates Title VI of the Civil Rights Act of 1964 (Title VI) and Section 1557 of the Affordable Care Act (Section 1557). Title VI prohibits recipients of federal funds from discriminating on the basis of race, color or national origin in their federally funded programs and activities. Section 1557 provides that an individual shall not be excluded from participation in, denied the benefits of or subjected to discrimination under, any health program or activity, any part of which is receiving federal financial assistance, based on the grounds prohibited under Title VI. 

The nearly eighteen-month investigation revealed areas of concern in ADPH’s operations and compliance with Title VI and Section 1557. Specifically, the investigation revealed that ADPH’s enforcement of sanitation laws threatened residents of Lowndes County with criminal penalties and even potential property loss for sanitation conditions they did not have the capacity to alleviate. The investigation also revealed that ADPH engaged in a consistent pattern of inaction and/or neglect concerning the health risks associated with raw sewage. The investigation revealed that despite ADPH’s awareness of the issues and the disproportionate burden and impact placed on Black residents in Lowndes County, it failed to take meaningful actions to remedy these conditions.

“Today starts a new chapter for Black residents of Lowndes County, Alabama, who have endured health dangers, indignities and racial injustice for far too long,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “Our agreement puts Lowndes County on a path to long overdue reform as the state now takes steps necessary to provide access to basic sanitation services, end exposure to raw sewage and improve health outcomes for marginalized communities. This agreement marks the first environmental justice settlement ever secured by the Justice Department under our civil rights laws. Our work in Lowndes County should send a strong message regarding our firm commitment to advancing environmental justice, promoting accountability and confronting the array of barriers that deny Black communities and communities of color access to clean air, clean water and equitable infrastructure across our nation.”

“Environmental justice is a public health issue, and where you live should not determine whether you get sick from basic environmental hazards not faced in other affluent and white communities,” said Director Melanie Fontes Rainer of the HHS Office for Civil Rights. “We are pleased that Alabama’s Public Health Department has committed to take immediate and long-term steps to protect the health of Lowndes County residents. This community has long been at the heart of the civil rights struggle, and today’s resolution is yet another testament to the ongoing work that is the pursuit of racial justice.”  

“This agreement creates a path towards sustainable sanitation solutions,” U.S Attorney Sandra J. Stewart for the Middle District of Alabama. “The measures required in the agreement will improve public health and the environment for the residents of Lowndes County. My office is proud to support the community and the parties in reaching these important goals.” 

Under the agreement, ADPH has agreed to take a number of actions to address public health in Lowndes County including:

  • Suspending Criminal Penalties and Liens: ADPH will suspend enforcement of sanitation laws that could result in criminal charges, fines, jail time and potential property loss for residents in Lowndes County who lack the means to purchase functioning septic systems. ADPH will ensure that Lowndes County residents are informed about the suspension of the criminal penalties and liens.
  • Examining Public Health Risks within Lowndes County: ADPH will coordinate with the Centers for Disease Control and Prevention (CDC) to measure the level of health risks different populations experience from raw sewage exposure. ADPH agrees to work collaboratively with the CDC and adopt any public health recommendations provided by the CDC.
  • Launching a Public Health Awareness Campaign: ADPH will develop a public health awareness campaign using radio, print ads, flyers, mailers, door-to-door outreach and other appropriate ways to ensure residents receive critical health and safety information related to raw sewage exposure.
  • Providing Public Health Educational Materials for Lowndes County Health Care Providers: ADPH will create or supplement education materials for health care providers for Lowndes County residents, including school-based health centers and community-based organizations, to provide more information on symptoms and illness related to raw sewage exposure.
  • Conducting Assessment to Determine Appropriate Septic and Wastewater Management Systems: ADPH will conduct a comprehensive assessment to determine the appropriate septic and wastewater management systems for homes within Lowndes County and use that information to prioritize properties to receive systems based on risk of exposure to raw sewage. ADPH cannot use this information for criminal penalties or liens.
  • Creating a Sustainable and Equitable Public Health and Infrastructure Improvement Plan: Within one year, ADPH will create a plan to improve access to adequate sanitation systems and address public health risks associated with raw sewage exposure.
  • Consistently Engaging with the Community: In carrying out each aspect of the interim resolution agreement, ADPH will consistently engage with community residents, local government officials, experts in wastewater, infrastructure, soil and engineering and environmental justice advocates. ADPH must also engage with community stakeholders on at least a quarterly basis regarding its progress in creating and implementing the final Public Health and Infrastructure Improvement Plan.

As a result of ADPH’s decision to enter into this interim voluntary resolution agreement, the departments have agreed to suspend their investigation. Under Title VI, the Justice Department is required to informally resolve an investigation that indicates noncompliance. If ADPH does not comply with the agreement, the departments will reopen their investigation.

Addressing discriminatory environmental and health impacts through enforcement of the nation’s civil rights laws is a top priority of both the Justice Department and HHS. Today’s announcement comes one day prior to the one-year anniversary of the Justice Department’s launch of its Office on Environmental Justice and its Comprehensive Environmental Justice Enforcement Strategy.

The Civil Rights Division’s Federal Coordination and Compliance Section and the HHS Office for Civil Rights conducted this investigation jointly with the support of the U.S. Attorney’s office in the Middle District of Alabama. 

Individuals who believe their civil rights have been violated can file a complaint with the Civil Rights Division at www.civilrights.justice.gov/report/. Additional information about the Office for Civil Rights is available on its website at www.hhs.gov/ocr. If you believe that you have been discriminated against in programs or activities that HHS directly operates or to which HHS provides federal financial assistance, you may file a complaint for yourself or someone else at:  www.hhs.gov/civil-rights/filing-a-complaint/index.html.

Assistant Attorney General Kristen Clarke Delivers Remarks to Announce Agreement in Civil Rights and Environmental Justice Investigation of Alabama Department of Public Health

Source: United States Department of Justice News

Remarks as Prepared for Delivery

Good afternoon. I am Kristen Clarke, the Assistant Attorney General for the Civil Rights Division of the U.S. Department of Justice. I am honored to be here today with Melanie Fontes Rainer, Director of the Office for Civil Rights at the U.S. Department of Health and Human Services (HHS) and First Assistant U.S. Attorney Jonathan Ross for the Middle District of Alabama.

We are here this morning to announce that the United States has secured an interim resolution agreement in our environmental justice investigation of the Alabama Department of Public Health (ADPH) in Lowndes County, Alabama. The Department of Public Health has agreed to take a number of significant steps to address the sanitation crisis that has plagued the predominantly Black, low-income communities of Lowndes County for generations. The agreement puts ADPH on a path towards ensuring the development of racially equitable and safe wastewater disposal and management systems in Lowndes County.

This agreement marks the first time that the Justice Department has secured a resolution agreement in an environmental justice investigation under Title VI of the Civil Rights Act of 1964. And while this may be the first, it certainly won’t be our last.

Here in Lowndes County, residents who are unserved by municipal sewage systems must bear the cost and burden of installing and maintaining state-permitted, private onsite wastewater systems, as required by the state. These systems, which include conventional septic systems, are often incompatible with the impermeable Black Belt soil prevalent across Lowndes County and are expected to — and often do — fail.

Without affordable and effective wastewater removal systems, residents have resorted to straight-piping, which is a method of guiding fecal matter, bathwater and other human wastewater away from a home by using a series of ditches or crudely constructed piping systems. The straight-piped wastewater festers in trenches and pools formed in residents’ yards, woods and open areas. Without functioning septic systems, the heavier rainfall and flooding from climate change saturates the impermeable soil and the waste matter simply has nowhere to go. It remains on the ground’s surface or backs up inside homes, exposing families to serious health risks. In Lowndes County, as many as 80% of homes not connected to municipal sewer systems either lack state-required septic systems or have failing systems not approved by the state’s Health Department.

Moreover, under Alabama state law it is a crime to violate certain sanitation-related laws. What this means is not only have communities been forced to pay the price to their dignity and safety from living in these conditions, they have also had to face the double penalty of being criminalized for these injustices as well.

This is not a new problem. For generations, Black rural residents of Lowndes County have lacked access to basic sanitation services. And as a result, these residents have been exposed to raw sewage in their neighborhoods, their yards, their playgrounds, schools and even inside their own homes. They have had to deal with sickness, disease and the public health risks that result from their reliance on straight-piping. In fact,  during our investigation, we heard from many Lowndes County residents who recounted that they could not recall a time when things were any different. Enough is enough.

The Justice Department, in partnership with the Department of Health and Human Services, opened this important investigation into whether the Alabama and Lowndes County Health Departments operate their onsite wastewater disposal and infectious disease and outbreaks programs in a manner that discriminates against Black residents of Lowndes County. Under Title VI of the Civil Rights Act of 1964 and Section 1557 of the Patient Protection and Affordable Care Act, these civil rights laws prohibit discrimination because of race, color and national origin in federally funded programs such as public health programs and activities. Over the course of our nearly 18-month investigation, we uncovered evidence that raised significant concerns about ADPH’s compliance with Title VI and Section 1557. Specifically, we found evidence that suggested ADPH has engaged in a consistent pattern of inaction and/or neglect concerning the health risks associated with exposure to raw sewage, and that ADPH’s implementation of its infectious diseases and outbreaks policies and procedures in Lowndes County may have deviated from standard protocols employed elsewhere in Alabama. We also uncovered concerns about ADPH’s role in the enforcement of laws that criminalize, and threatens liens, against residents who cannot afford functioning septic systems. We also found that ADPH has not collected  data to sufficiently monitor, track and abate public health nuisances caused by improper wastewater management in Lowndes County. And we found that, ADPH was aware  of the issues and the disproportionate burden and impact placed on Black residents in Lowndes County, but failed to take meaningful actions to remedy these conditions.

The agreement we are announcing today marks a new day for Black people in Lowndes County. It represents a major step toward resolving these problems — a step that is long overdue. The agreement requires ADPH to stop imposing fines, fees, penalties and threatening liens on residents of Lowndes County who cannot afford functioning septic systems; to increase data collection about onsite wastewater management systems in Lowndes County; to better examine the public health risks within Lowndes County; to develop public education and awareness campaigns to make sure that residents and health care providers are aware of these risks; and to develop a long-term public health and infrastructure improvement plan to improve access to adequate sanitation systems. At every stage, ADPH must engage with residents, local officials and experts to ensure their feedback and input is included in these reforms. My colleague and partner, Director Fontes Rainer, will describe the resolution agreement in more detail in a moment.

The fight for environmental justice is an urgent one. The climate crisis has exacerbated the health and safety risks faced by marginalized communities. The fight for environmental justice is also a fight for racial justice. The research overwhelmingly demonstrates that race is the primary indicator of exposure to environmental harms. For example, Black Americans are 75% more likely than others to live near facilities that produce hazardous waste. And Black children are nearly three times more likely than White children to have elevated blood-lead levels. The sad reality is that too many communities of color are struggling for clean water, clean air and bear the consequences of pollution and underinvestment in wastewater infrastructure, transportation, and healthcare.

One year ago, on May 5, 2022, the Justice Department rolled out a Comprehensive Environmental Justice Enforcement Strategy, where we vowed to use all of our enforcement tools and authorities to promote and advance environmental justice. This agreement reflects that ongoing commitment.

I want to acknowledge the Alabama Department of Public Health. Since the day we announced our investigation, ADPH has been cooperative, and has provided us with the information and access we needed during our investigation. We look forward to continued work with ADPH as they now implement the terms of our agreement.

In closing, I want to take a moment to speak directly to the impacted residents of Lowndes County. I want to acknowledge your bravery and resiliency, and the courage you’ve shown in speaking about this problem and making sure your voices were heard. I want to acknowledge the pain that has come from being exposed to health risks and unnecessary criminalization. I know that there is more work to be done to advance environmental justice and racial justice. I know that lasting, sustainable solutions will take time and commitment. But I want to assure you that the Department of Justice and our partners at the Department of Health and Human Services will be with you ever step of the way. Starting today, we are reaching out to residents and community leaders to discuss this agreement in greater detail and answer any questions and address any concerns.

I will now turn it over to HHS Office for Civil Rights Director Fontes Rainer who will discuss the agreement in further detail.

Director Rachel Rossi of the Office for Access to Justice Delivers Remarks at the Equal Justice Conference

Source: United States Department of Justice News

Remarks as Prepared for Delivery

Thank you to co-chairs Henry Su and Maria Thomas-Jones and to the ABA and NLADA for your work to host this meaningful event.

It is truly invigorating to be here at the Equal Justice Conference, where many panels and discussions will illustrate innovative partnerships and strategies. From linking technologists and lawyers — to understanding the connections between insurance coverage, race and legal assistance — leaders from all sectors and disciplines are re-envisioning what access to justice can look like through creativity and unlikely partnerships.

The shared ambitious goal that brings us all here — access to justice for all — requires these types of bold ideas. 

And it takes all of us. When systemic inequities persist across our courts, and across our systems of housing, healthcare, employment, child custody and more, these partnerships are critical. Breaking down silos by coming together can bring visibility to these issues and help us better understand their comprehensive impact — an impact that goes beyond one case or one court system. And this helps us to craft holistic solutions.

For those who hadn’t heard, the Office for Access to Justice is back. And we’re building programs and initiatives through this bold lens. Our mission is to break down barriers to the promises and protections of our legal systems. Our goal is to ensure justice belongs to everyone. And we believe it is possible.

But our office cannot succeed without a permanently imbedded function and voice in the federal government. We won’t succeed without broad collaboration. And we certainly will not succeed unless we forge deep partnerships with those doing the work on the front lines, like many in this room.

I’d love to share just a few initiatives we’ve launched so far.

We’re working to pursue language justice. We hired the Justice Department’s first ever Language Access Coordinator, who carries a department-wide mandate and sits in the Office for Access to Justice. We’ve re-launched and are chairing the Justice Department Language Access Working Group, and we’re working to pursue resources and policies that expand language justice.

We also staff and direct the work of the White House Legal Aid Interagency Roundtable (LAIR), a collaboration of 28 federal agencies to increase access to justice across federal government, co-chaired by Attorney General Merrick Garland and White House Counsel Stuart Delery. LAIR fosters partnerships with leaders on housing, education, labor, health, food security and more. In 2022, we focused on people-centered approaches to simplifying government forms and processes. You can find our 2022 report online, and you can also get a hard copy and meet our team at the ATJ Networking meet and greet later during lunch today.

Our office is also working to mitigate against economic barriers to accessing justice — like unjust fines or fees. Just last month, our office partnered with the Civil Rights Division and the Office for Justice Programs to issue a Dear Colleague Letter on the assessment of fines and fees across civil and criminal legal systems.

And our office is working to combat the wide-ranging barriers faced by those leaving incarceration. We led the drafting and publication of the Reentry Coordination Council’s Report and hosted a Reentry Simulation, in collaboration with six other federal agencies from Housing and Urban Development, to Labor and to the Department of Education. We presented recommendations to Congress on reducing barriers to successful reentry for individuals released from incarceration.

And today, as we continue to develop initiatives through cross-sector collaborative approaches, I’m pleased to announce that the Office for Access to Justice has posted a position for an attorney advisor to develop and lead an innovative civil legal services pilot program within the Federal Bureau of Prisons (BOP).

We started by working with BOP and the National Institute of Corrections to administer a voluntary survey to incarcerated individuals in federal prisons. Over 50,000 people responded, the vast majority indicating need for civil legal help.

We know that touches with the justice system exacerbate collateral consequences, and civil legal needs faced by the most vulnerable communities.

People involved with the criminal justice system are disproportionately low-income and indebted, and incarceration can lead to worsening debt.

Incarceration can also contribute to loss of child custody and parental rights.

And federal benefits can be terminated or become more difficult to access for those with a criminal conviction.

When basic needs are cut off, and when core civil legal issues are not resolved, it contributes to recidivism and cycles people right back into the criminal justice system. Through this initiative and partnership, we hope to disrupt this cycle.

The pilot program will explore methods to offer services on a limited scale — on particular issues in certain women’s facilities — while evaluating the feasibility of expanding in the future. And we plan to develop metrics on the front end to understand the effectiveness of providing civil legal services to individuals impacted by the criminal legal system.

We hope that you consider applying and passing this posting along to colleagues.

And as we continue to develop initiatives and grow our work, we hope that you will partner and collaborate with us, and that you see us as your ally and supporter. Thank you.

Deputy Assistant Attorney General Lisa H. Miller Delivers Remarks at the American Bar Association’s 33rd Annual National Institute on Health Care Fraud

Source: United States Department of Justice Criminal Division

Remarks as Prepared for Delivery

Good afternoon. I want to thank the American Bar Association, and specifically, Gabriel Imperato, for inviting me to deliver today’s keynote.

Having investigated and prosecuted health care fraud crimes in some of my prior roles in the department, both as part of the Criminal Division’s Fraud Section and as an Assistant U.S. Attorney, it is an honor and a privilege to be here among current and former colleagues, experts, counsel, government officials, and insurer representatives to discuss our policies and enforcement efforts in this critical space.   

The dialogues we have at conferences like these are important for a number of reasons – most of all, to share information. No matter your practice, take advantage of the time to listen and learn from those around you this week.

Combating health care fraud is a top priority for the Justice Department. The reasons are plain.

Every day, fraudsters intent on lining their own pockets at the expense of the American taxpayer, patients, and private insurers abuse our nation’s health care systems. This drives up costs of health care for us all. It imperils the long-term solvency of Medicare and Medicaid, upon which millions of Americans depend. And any time greed replaces medical necessity as a factor in providing health care services, our communities suffer.

As I saw firsthand while living and prosecuting crimes in South Florida, addiction treatment fraud derails patients’ ability to pursue recovery and sobriety.

Falsely diagnosing people with physical and mental disorders takes an immeasurable emotional and psychological toll on patients and their families.

Kickbacks corrupt medical professionals’ judgment and erode patients’ ability to choose and receive the care that they deserve.

And overprescribing schemes can at times even cause death.

Every day, in response to these threats, department prosecutors vigilantly pursue crime prevention, detection, and accountability. And as I will describe in a moment, we are especially focused upon rooting out schemes affecting vulnerable populations.

But first, I want to address our approach and its results. To date, our Health Care Fraud Strike Forces across the country have charged more than 5,000 defendants who collectively have billed federal health care programs and private insurers more than $24 billion. 

With Chief Dustin Davis at its helm, the Fraud Section’s Health Care Fraud Unit currently has a team of approximately 70 specialized prosecutors. It’s now double the size that it was 10 years ago. This past year alone – 2022 – the Health Care Fraud Unit emerged from the pandemic by litigating a record number of trials: 38. And during the year, 179 additional individuals pled guilty in connection with Health Care Fraud Unit cases, all while prosecutors charged an additional 158 individuals in connection with an alleged loss of over $2.27 billion. In 2023, the unprecedented trial schedule hasn’t stopped, as the Health Care Fraud Unit already has conducted 12 trials, resulting in 15 convictions.

While many of you know well the sixteen-year history and successes of the Strike Force program – I see Kirk Ogrosky in the crowd – certain principles deserve emphasis. For one thing, partnerships are critical to our accomplishments. From its start, the Health Care Fraud Unit has collaborated with U.S. Attorneys’ Offices around the country, as well as federal and state law enforcement agencies. These teams work shoulder to shoulder, at times co-located, and travel together as casework demands. And as our enforcement actions have consistently shown, we also coordinate with civil colleagues working in parallel to protect health care programs’ integrity. 

We use all tools available – including, especially, cutting-edge data analysis – to identify suspicious health care trends. We concentrate and allocate our resources accordingly, not only in the hardest-hit geographic regions, but also upon pursuit of the highest-impact cases. Creation of the National Rapid Response Strike Force and the New England Prescription Opioid Strike Force are just the latest examples of how we shift our internal structure based on data. 

Through it all, we never lose sight of crime prevention. We stop ongoing schemes in their tracks to minimize patient harm and financial losses, and to send a powerful deterrent message. To give just one example, had the defendants charged in fiscal year 2020 continued defrauding the federal health care programs and private insurers at the same rates they had been before detection, this would have resulted in an additional $4.18 billion loss after five years, and a $10.42 billion loss over 10 years. And as I’ll touch on later, the Criminal Division’s policies aim to deter misconduct before it even occurs.   

Though these principles remain constant, we have seen new and emerging trends in the fight against health care fraud. 

As I mentioned, right now, the Health Care Fraud Unit and its partners are prioritizing the investigation and prosecution of schemes that affect vulnerable populations, including, but by no means limited to, sober homes fraud, illegal prescribing of controlled substances, and hospice fraud. 

Today, I want to highlight as an example the Merida Group case, the largest-known hospice fraud scheme prosecuted to date, in which owner Rodney Mesquias and CEO Henry McInnis exploited thousands of patients and submitted over $150 million in fraudulent claims to Medicare for hospice and home health services. 

As you all know, hospice is end-of-life care for patients who are dying. Medicare only reimburses hospice care in limited circumstances, when a doctor certifies that the patient has a life expectancy of six months or less. In recent years, data has shown an increase in costs to the Medicare program resulting from claims for hospice care. 

In this case, the cost of the criminal conduct to Medicare was staggering, but the emotional cost on especially vulnerable people was egregious.

As trial witnesses testified, the majority of patients actually were not terminal, so they did not qualify for hospice services. So, the defendants tricked nonterminal patients into going on hospice and into palliative care, sometimes causing them to abandon potentially curative life-extending treatments that they may have needed and that may have improved their quality – and duration – of life.  In other words, the defendants caused cancer patients to stop pursuing chemotherapy so they could profit from lucrative palliative care fees.

The conspirators exploited language barriers, and the fact that the patients were elderly and/or had diminished mental capacity. Certain patients were even told they were dying when they were not. As one patient who testified at trial put it, “how would you like to have somebody come into your hospital room and just tell you that you have three to six months to live and your family’s standing there in shock? I cried a lot at home. I was very depressed. I didn’t leave my home for over three months because I didn’t know if I was going to wake up or not. I had thoughts of suicide so my family wouldn’t have to go through watching me die.”

The defendants turned others’ suffering into profits that they spent on fleeting luxuries: a Porsche, jewelry, designer clothing, real estate, season tickets for premium seating to see the San Antonio Spurs, and bottle service at high-end Las Vegas nightclubs. Mesquias and McInnis treated physicians to lavish parties at these nightclubs, plying them with tens of thousands of dollars of perks in exchange for medically unnecessary patient referrals.

It’s no surprise why the Health Care Fraud Unit and the U.S. Attorney’s Office for the Southern District of Texas tackled this case head-on. Following their trial convictions, Mesquias and McInnis were sentenced to 15 and 20 years in prison, respectively, and each ordered to pay $120 million in restitution – a result affirmed by the Fifth Circuit Court of Appeals last year.

The next two priorities I want to emphasize are telehealth and pandemic fraud, which can also place susceptible patients at risk. The population of vulnerable Americans expanded exponentially with the onset of COVID-19. As everyone in this room knows well, the pandemic rocked the medical field, and rapidly accelerated certain ongoing shifts in the provision of health care, particularly telemedicine. But just as robbers seek banks because, as Willie Sutton famously said, it’s where the money is – like flies to the ointment, bad actors in the health care system still sought to exploit and abuse trust placed in them, even in times of national emergency.

To be sure, we were tracking and pursuing the early telehealth frauds before the pandemic, particularly those involving durable medical equipment and genetic testing. 

Indeed, here in Chicago, we used our data-driven approach to identify, build a case against, and charge the largest telemedicine prescriber of genetic testing in the country – Dr. Sargon Audisho – for fraud occurring from 2016 to 2019. Audisho was a Chicago-area physician who became licensed in 16 additional states to be able to submit telemedicine claims – all told, his fraudulent prescribing resulted in billing Medicare for more than $145 million. In September 2022, Dr. Audisho pled guilty for his actions. 

Overall, since 2018, the Health Care Fraud Unit has charged 163 defendants in connection with telemedicine schemes, including 40 medical professionals, involving more than $4.75 billion billed, and $1.65 billion paid. 

While telefraud predated the pandemic, along with the rise in telehealth since the onset of the pandemic, these and other schemes expanded. We were well-positioned to adapt our prosecution strategies to dynamically counter these new threats. 

In fact, starting in early March 2020, the National Rapid Response Strike Force convened a COVID-19 Interagency Working Group, made up of the leadership of law enforcement and public health agencies, bringing a whole of government approach to identifying, investigating, and prosecuting COVID-19 related health care fraud.

To date, this group has spearheaded three nationwide COVID-19 health care fraud enforcement actions, and we announced the largest of the three just two weeks ago, on April 20, 2023. That enforcement action included charges against 18 defendants in nine federal districts for their alleged participation in various schemes that allegedly resulted in over $490 million in COVID-19 related false billings to federal programs and theft from federally funded pandemic programs.

Many of the cases charged in this action are worth highlighting, but I’ll mention a couple: in the Central District of California, a lab owner was charged for allegedly submitting over $358 million in false and fraudulent claims to Medicare, the Health Resources Services Administration, and a private insurance company for laboratory testing. The indictment alleges that the defendant’s lab performed COVID-19 screening testing for nursing homes and other facilities with vulnerable elderly populations, as well as primary and secondary schools. But the defendant saw an opportunity to profit, and allegedly fraudulently added claims for expensive respiratory pathogen panel tests even though ordering providers and facility administrators did not want or need them.

In a second case in the Central District of California, a medical doctor was charged for allegedly orchestrating an approximately $230 million fraud on the Uninsured Program, which was designed to prevent the further spread of COVID-19 by providing access to uninsured patients for testing and treatment. The doctor was the second highest biller in the country to the Uninsured Program, and he allegedly submitted fraudulent claims for treatment of patients who were insured, billed for services that were not rendered, and billed for services that were not medically necessary. He allegedly used over $100 million in fraud proceeds for high-risk options trading. This doctor is also charged with two other individuals for allegedly submitting over 70 fraudulent loan applications through the Paycheck Protection Program (PPP) and Economic Injury Disaster Loan (EIDL) Program and fraudulently obtaining over $3 million in loan funds.

In addition to work by the Health Care Fraud Unit, our Market Integrity and Major Frauds Unit has targeted health care executives seeking to fraudulently boost share prices with misstatements related to the pandemic. For example, last year, the former CEO of a publicly traded health care company was charged with allegedly misleading investors about obtaining rapid test kits.

These and the other cases demonstrate our ability to swiftly target large-scale and emerging schemes, all with the aim of holding responsible individuals to account and protecting the integrity of markets, health care systems, and other federal programs.

It bears repeating that we do not only prosecute crimes after they occur. We strive to prevent crime. That is why, for years, the Criminal Division has had public, transparent policies in place to encourage companies to invest in effective compliance programs and provide incentives for companies that voluntarily self-disclose misconduct.

I want to highlight one particular Criminal Division policy change today, which is relevant to companies in all industries, including the health care field. In January of this year, our Assistant Attorney General, Kenneth Polite, announced the first significant changes to the Criminal Division’s Voluntary Self-Disclosure and Corporate Enforcement Policy (CEP) in five years. As has long been the case, the CEP provides that if a company voluntarily self-discloses conduct to the division, fully cooperates with the government’s investigation, and timely and appropriately remediates the wrongdoing, it can rely on a presumption of a declination absent the presence of aggravating factors.

But the revised CEP announced in January for the first time expressly spells out that even if a company has aggravating factors, there is still a path to a declination. Specifically, if a company with aggravating factors immediately self-reports the misconduct, demonstrates extraordinary cooperation and remediation, and has in place an effective compliance program both at the time of the misconduct and the disclosure, then it may still receive a declination under the CEP. 

And unless a company has aggravating factors, to obtain a presumption of a declination, the standard remains that a company need only make a timely self-disclosure.

The goal is to demonstrate that being a good corporate citizen and self-reporting misconduct is not only is the right thing to do, but also makes good business sense. Since 2016, we have announced 17 CEP declinations. Recent examples include Corsa Coal and Safran, a case where we determined that a declination was appropriate for a company that self-disclosed bribery uncovered in post-acquisition due diligence. The benefits are clear: with a CEP declination, a company only has to pay disgorgement, and can avoid the reputational and financial consequences of a corporate resolution.

We have heard time and again from the corporate community that it’s a difficult decision to determine whether to voluntarily self-disclose misconduct, and we understand that. 

But I’m also here to tell you that it’s never too late to do the right thing. 

Help guide your clients. Be a force for good inside your organization. Empower your compliance team.

The department and the sentencing guidelines have long recognized that no compliance program can prevent all criminal activity; in determining whether a compliance program is effective, it’s all about what systems are in place that enable a company to successfully respond when misconduct does occur. 

An ounce of prevention is worth a pound of cure.

An ethical culture drives an effective compliance program, and a compliance program cannot be effective without the full support and buy-in from the business. Companies that prioritize embedding ethical values throughout their operations are more successful at implementing and sustaining effective compliance programs.

The key point, whether or not a company self-discloses, is that companies fare far better when they show that they’re serious about compliance, cooperation, and remediation. 

Under our revised CEP, even where a company does not voluntarily self-disclose, if it fully cooperates and remediates, our policy doubles the maximum possible fine reduction – from 25% to 50% – and will allow our prosecutors to differentiate more clearly among companies.

Cooperation and remediation can also make a huge difference in the form of resolution – these concepts are critical when we consider whether to pursue an NPA vs. a DPA, or DPA vs. a guilty plea. 

On that point, our Outcome Health corporate case – and related prosecution of the responsible former executives of the company – demonstrates the impact that cooperation and remediation can have on the form of a resolution and associated penalties. Together with our partners at the U.S. Attorney’s Office here in Chicago, the Fraud Section’s Market Integrity & Major Frauds Unit entered a non-prosecution agreement with Outcome, a privately-held company headquartered in Chicago, in 2019. Former executives and employees of Outcome perpetrated a massive five-year scheme to defraud its clients – most of which were pharmaceutical companies – by, among other things, selling advertising inventory it did not have.

While Outcome did not voluntarily self-disclose its crimes to the department, and while the scheme involved the company’s highest-level executives, it earned a non-prosecution agreement by not only accepting responsibility for its employees and agents’ actions, but also taking immediate steps to remediate and fully cooperating. These steps included parting ways with the executives and employees who were involved in the wrongdoing and making significant improvements to internal controls covering aspects of the company’s operations that had allowed the fraud to take place. Through the NPA, Outcome also committed to compensating the pharmaceutical client victims.

Significantly, underscoring our prioritization of individual accountability, the prosecution team pursued charges against Outcome’s responsible corporate executives and prevailed – following a jury trial – in convicting them all last month for their roles in this complex fraud and money laundering scheme. That included the company’s co-founder and former CEO, its former president, and its former COO and CFO, each of whom lied to investors and lenders about the company’s advertising campaigns, revenue, and return-on-investment. Three other former employees of Outcome also pleaded guilty prior to trial. 

The NPA entered a few weeks ago with IRB Brasil Resseguros illustrates similar points about the value of cooperation and remediation to a form of resolution. There, the scheme also involved a high-level executive; the company admitted that its former CFO misled shareholders and the investing public by falsely claiming that the U.S. firm Berkshire Hathaway had invested in IRB. When Berkshire Hathaway made public it had never been contemplating investing in the company, the stock price dropped precipitously. But by fully cooperating with the government’s investigation, including by providing translations of documents and making personnel available for interviews, and implementing remedial measures, here, too, the company obtained an NPA. And the responsible individual – the former CFO – was indicted for his alleged role in the scheme.

I expect you will see in the near future that, like the rest of the division, our Health Care Fraud Unit will apply the CEP to reward companies that voluntarily self-disclose misconduct, cooperate, and remediate, and pursue appropriate charges and resolutions with corporations responsible for health care crimes, alongside its longstanding focus on holding individual wrongdoers accountable.

In short, as its varied work shows, the Health Care Fraud Unit’s name is misleadingly narrow. Health care fraud schemes have ranged widely over the years, from telemarketers hawking unnecessary and ineffective compounded creams to rampant home health care fraud and laundering operations associated with business email compromise schemes victimizing Medicare and Medicaid. 

But for good reason, while schemes, technologies, laws, and regulations shift over time, and our approach and resourcing adapt, our core mission remains the same: to seek justice, whether it means pursuit of an indictment or declination of charges. We use our policies, partnerships, data, and traditional law enforcement techniques to hold wrongdoers to account, from medical professionals, health care executives, and providers to patient recruiters and money launderers. 

Access to health care in this country is particularly important at this moment in our history; and greed cannot replace need as the basis for medical billing or treatment.  

I am confident that the department’s dedicated public servants will continue the great tradition of deterring misconduct, punishing bad actors, and helping protect the most vulnerable among us.

Thank you.

Colorado Man Pleads Guilty to Federal Hate Crime for Church Arson

Source: United States Department of Justice News

A Colorado man pleaded guilty today to a hate crime charge in connection with a fire he set to a church in Loveland, Colorado.

According to court documents and admissions during the plea hearing, Darion Ray Sexton, 22, intentionally set fire to the church in the evening hours of Jan. 19. Sexton admitted that he set this fire by throwing two Molotov cocktails at the church – one at the front door and the other at the basement. Sexton further admitted that he was motivated to set this fire due to the religious character of the church and that he intended to destroy the church.

“Protecting religious freedom and observance is a top priority for the Department of Justice,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “We will continue to vigorously prosecute those who attack houses of worship and target religious communities.”

“We all have a right to feel safe and secure in our houses of worship – no matter our religion or belief,” said U.S. Attorney Cole Finegan for the District of Colorado. “An act of violence in one of our sacred places is especially serious, and we will work with our law enforcement partners to vigorously prosecute all such offenses.”

“The FBI treats hate crimes as the highest priority of our civil rights program because everyone deserves to feel safe to exercise their religion without fear of violence from others,” said Special Agent in Charge Mark Michalek of the FBI Denver Field Office. “FBI Denver is committed to protecting those rights, and we will continue to aggressively work with our law enforcement partners to bring justice to all communities that have been targeted.”

The sentencing hearing is scheduled for July 21. Sexton faces a maximum sentence of 20 years in prison and a $250,000 fine.

The FBI, ATF and the Loveland Police and Fire Departments investigated the case.

Assistant U.S. Attorney Bryan D. Fields for the District of Colorado and Trial Attorney Maura White of the Civil Rights Division’s Criminal Section are prosecuting the case.