© 2013 The Texas Lawbook.
By Brooks Igo
Staff Writer for The Texas Lawbook
(October 24) — Executives and general counsels for healthcare companies need to heighten their corporate compliance efforts or they may find themselves in court against state and federal regulators.
That’s the advice of Sean McKenna, who served for the past decade as a federal prosecutor in the U.S. Attorney’s Office of the Northern District of Texas. He recently joined Haynes and Boone as a partner in the firm’s Dallas office.
McKenna’s practice will focus on defending executives and companies under regulatory and white collar scrutiny. More than ever, he says, courts and enforcement agencies are seeking to address the perception that most companies lack effective corporate oversight or personal responsibility—as a result, he advises healthcare providers to be vigilant to ensure continued compliance with all rules and regulations.
In a Q&A with The Texas Lawbook, McKenna talks about why he chose Haynes and Boone, specific concerns for healthcare executives and their legal advisors and the kinds of cases the U.S. Attorney’s Office of the Northern District is bringing.
TLB: Why did you make the move to Haynes and Boone?
McKenna: After almost 15 years of government service, I wanted to seek new challenges that Haynes and Boone could provide. It was a difficult decision, and I thoroughly enjoyed my time with the U.S. Attorney’s Office and prior agencies, but Haynes and Boone presented a great opportunity to work with quality attorneys with a proven record of successfully defending executives and companies under regulatory and white collar scrutiny.
TLB: How do you think your experience as an Assistant U.S. Attorney for the Northern District of Texas has prepared you for your practice at Haynes and Boone?
McKenna: I have ten years of experience reviewing, investigating and prosecuting executives and companies. This will be a tremendous help to the firm’s clients as they navigate and address an array of complex and changing regulatory and enforcement agendas. Whether civil, criminal or administrative, my time with the government handling healthcare, procurement and other financial frauds has given me a unique perspective to the issues that many companies and individuals face. I look forward to working with them.
TLB: What are the current trends/hot issues related to your practice in healthcare that you think you and your clients will be addressing for the next year or so?
McKenna: Under the recent healthcare legislation, states and the federal government have been given expanded and enhanced authorities to combat allegations of healthcare fraud. At the same time, federal reimbursement is preparing to shift from paying for complexity to quality. With new resources and tools, corporate officials and healthcare providers should be aware not only of possible criminal and civil liability, but the collateral consequences of federal and state investigations, such as private suits and payors seeking to enforce their own remedies, as well as adverse board and licensing actions. Increasingly, federal and state regulators also are seeking to hold individuals accountable for their conduct. No longer are courts and enforcement agencies content to impose corporate liability. More than ever, they are seeking to address the perception that most companies lack effective corporate oversight or personal accountability. Healthcare providers must be vigilant to ensure continued compliance with all manner of rules and regulations as enforcement agencies and potential whistleblowers look for new ways to bring cases. In such an environment, especially with the emphasis on rewarding quality care, providers like nursing facilities, home health agencies, and hospice companies face the prospect of shrinking payments and increased enforcement.
TLB: Are there criminal law violations healthcare executives and lawyers may fall into that they can easily avoid?
McKenna: We continue to see allegations that providers are not reporting and paying back “known” overpayments. Due to the 2009 amendments to the federal civil False Claims Act, these allegations are now much more common. Executives and companies are faced with a very difficult landscape of when the obligation to repay is triggered, how and to whom to repay, and the “lookback” period. Those all are factually driven decisions that providers and executives must be prepared to address to ensure repayment of actual overpayment are timely and appropriate. Providers have to be prepared to address these situations and have a commitment to knowing when and how to satisfy the repayment obligation, or face the risk of civil and criminal liability.
TLB: With so much emphasis on healthcare, is federal law enforcement dropping the ball on other non-healthcare related business fraud that should be investigated and prosecuted?
McKenna: Despite recent media attention on significant healthcare prosecutions and recoveries, make no mistake that the Department of Justice and its partner agencies continue to invest resources to deter and reduce procurement, mortgage, and other government contract fraud, waste, and abuse. In my last six years as an Assistant U.S. Attorney, I chaired the North Texas Procurement Fraud Working Group which brought together regional law enforcement agencies responsible for combatting non-health care fraud. Each U.S. Attorney’s Office also has dedicated and experienced civil and criminal prosecutors to handle these cases. While the emphasis has been on health care fraud, there have been numerous recent corporate and procurement fraud investigations, prosecutions, and recoveries. Remember, with the enhanced federal civil False Claims Act, it is not just direct government contractors that face potential liability; it’s every company that accepts, in some way, federal funding.
TLB: Has the funding the U.S. Attorney’s Office—Northern District of Texas received made a difference in the number of cases being pursued? And if so, what cases are they bringing?
McKenna: That office always has brought significant health care fraud cases against executives and companies. Since approximately 2010, the department’s priority on healthcare fraud led to the establishment of a local Medicare Strike Force. With an additional four criminal prosecutors funded and increased agency and main Justice support, that team has been actively investigating and prosecuting egregious examples of fraud – kickback-induced medically unnecessary home health visits and durable medical equipment suppliers, illegal swapping arrangements by providers and their physician conspirators, as well as other common frauds such as upcoding, billing for services not rendered, and identity theft.
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