Judith Waltz Comments on DOJ Approach in FCA Lawsuit

Foley & Lardner LLP partner Judith Waltz is quoted in the article, “FCA Lawsuit Alleges MultiCare Kept Billing for Surgeon’s Procedures Despite DOJ Warning,” in the Report on Medicare Compliance, published by the Health Care Compliance Association.

Waltz, who is co-chair of Foley’s Health Care Practice, offered insight on a False Claim Act (FCA) lawsuit involving a hospital that kept billing for a surgeon’s procedures despite having received warning from the U.S. Department of Justice of an investigation into the surgeon’s conduct.

Waltz said that the DOJ relying on its earlier call to establish FCA knowledge by the hospital may be a sign of the agency’s overreach. “Assuming there are quality issues that have been identified, as there were here, those issues should be working their way through medical boards and the quality review processes at the hospital. Those processes allow thorough evaluation of quality complaints, with peer review protections and privileges that encourage free discussions,” she explained.

Waltz added that the DOJ should not be reaching conclusions based on its views of the surgeon’s care, “especially if their investigation is in an early stage or if concurrent allegations have been settled without admission of liability and then DOJ later uses its information-sharing against the hospital in an FCA complaint.”

Waltz also commented that the merging of quality and compliance—which was emphasized in the U.S. Department of Health and Human Services new General Compliance Program Guidance—has its risks.

“I respect and support the government’s focus on quality, but DOJ’s FCA liability approach—if its calls are not heeded—may discourage some people from coming forward with quality complaints.” She added that providers should take a call from the DOJ very seriously.