Blank Rome has added Barrett Howell to its ranks as a partner in the white collar defense and investigations group in Dallas while the U.S. Department of Justice is ramping up criminal health care fraud investigations and prosecutions.
Howell, who was previously a partner at Katten Muchin Rosenman, defends companies and individuals against federal criminal investigations and prosecutions and civil fraud investigations and enforcement actions. The majority of his caseload is made up of healthcare cases. Recently, he’s been most busy representing laboratories that conduct genetic testing and physicians who also own pharmacies that, he says, the government “assumes right out of the gate that it’s a fraudulent arrangement.”
Fiscal year 2022 marked the second-highest number of settlements and judgments under the False Claims Acts in a single year with the government and whistleblowers being party to 351 settlements and judgments totaling more than $2.2 billion, the DOJ announced earlier this year. More than $1.7 billion of that was related to health care industry cases.
The Northern District of Texas is a hot bed for government investigations and prosecutions of criminal health care fraud, Howell said. The Department of Justice has increasingly staffed the Northern District with attorneys belonging to a health care fraud unit. Lawyers have also noticed an uptick of investigations and prosecutions in the Southern District in Houston, Howell said.
The number of task force lawyers in Dallas’ U.S. Attorney’s Office grew from about five in 2018 to 12 this year, Howell said, and they carry heftier plea negotiations than other assistant U.S. attorneys. A spokeswoman for the U.S. Attorney’s Office for the Northern District of Texas did not respond to an information request.
“It makes a huge difference in a client’s ability to even meaningfully consider a potential plea,” Howell said.
Furthermore, the government has been adhering to a notion they can use “intended loss,” rather than actual loss, to obtain longer sentences under the U.S. Sentencing Guidelines, Howell said.
A recent U.S. Supreme Court decision in Kisor v. Wilkie paved the way for lawyers to argue the loss calculation should be limited to actual loss. As a result, district and circuit courts are using different numbers for sentencing, Howell said.
“Some are predicting, and I believe it will be the case, that it’ll eventually have to get to the Supreme Court,” Howell said.
Say, for example, a healthcare provider attempted to bill $100 million in allegedly fraudulent funds, but received just $5 million.
“Federal defendants will need to know whether, when they are sentenced or found guilty, if the loss amount is the intended or the attempted to bill, or if it’s the actual collected, because it makes such a huge difference under the sentencing guidelines,” Howell said.
Jerry Bernstein, partner and co-chair of the Blank Rome’s white collar defense and investigations group, said the Northern and Southern Districts of Texas have also seen an uptick in healthcare criminal investigations since the DOJ created Covid-19 strike forces this summer.
“Barrett’s experience helping clients who work in the healthcare industry will be extremely valuable during this rise in healthcare fraud enforcement activity,” Bernstein said.
Blank Rome opened its Dallas office in July. It’s the Am Law 100 firm’s 15th office and second in Texas. The prospect of building a team with the backing of an Am Law 100 platform appealed to Howell, who said the move “creates tremendous opportunities that made it very difficult to say no to.”