The U.S. Department of Justice (“DOJ”) recently issued a memorandum announcing the priorities of its newly established National Fraud Enforcement Division (the “Division”), identifying health care fraud as a key enforcement focus. The Division was created to combat fraud and will concentrate its efforts on public trust and financial integrity, health care, internal revenue, global trade and commerce and corporate misconduct.
According to the DOJ, an estimated 3% to 10% of annual health care spending is lost to fraud. The Division intends to prioritize investigations involving telemedicine arrangements, Medicare and Medicaid fraud, controlled-substance diversion, home health and hospice programs and the marketing of unsafe or misrepresented health care products and services. Two primary takeaways from the DOJ’s announcement are: (1) the DOJ is significantly expanding its resources to target health care fraud; and (2) the DOJ is implementing a more coordinated, data-driven approach to health care fraud enforcement.
This second development may be particularly significant for health care providers because advances in data analytics and artificial intelligence are expanding the types and volume of information that can be analyzed as part of an investigation. In addition to traditional analytics applied to structured data, large language models (“LLMs”) and other artificial intelligence tools may facilitate the analysis of large volumes of unstructured health care and compliance information. Depending on the data available and applicable privacy and security controls, this may include claims and billing records, medical and pharmacy records, electronic health record (“EHR”) data, provider and patient communications, contracts and other business documents, audit and compliance records, policies and procedures, referral and ordering information and other structured or unstructured data.
For example, LLM-enabled tools can assist in organizing and analyzing narrative EHR documentation, contracts, correspondence, policies and other records that may be difficult to evaluate at scale using traditional analytics alone. When combined with structured claims, billing and other transactional data, these tools may provide investigators with additional ways to identify patterns, relationships or inconsistencies that warrant further review.
The DOJ has indicated that it expects to pursue larger and more complex health care fraud matters moving forward. Health care providers should therefore significantly consider how their own data and documentation could be evaluated using increasingly sophisticated analytical tools. Providers and health systems should review their compliance programs, billing practices and federal health care program submissions to ensure accuracy and reduce the risk of government scrutiny.
Practical Takeaways
- DOJ is targeting health care fraud: The DOJ has identified health care fraud as a top enforcement priority and is investing significant resources in personnel, technology and data analytics to identify and prosecute suspected fraud.
- LLMs may expand data analysis: In addition to structured claims and billing data, LLM-enabled tools can help analyze unstructured information such as EHR documentation, contracts, correspondence, policies, audit materials and other health care records. Providers should consider how their own data could be organized and reviewed using these technologies while maintaining appropriate privacy, security and human-review safeguards.
- Providers should review compliance practices: Health care providers should take this opportunity to evaluate their compliance programs, coding and billing processes and federal health care program submissions to help mitigate potential enforcement risk.
If you have questions or would like more information about this topic, please contact:
- David Honig at (317) 977-1447 or dhonig@hallrender.com;
- Brandon Helms at (248) 457-7847 or bhelms@hallrender.com;
- Matt Schappa at (317) 429-3604 or mschappa@hallrender.com;
- Kennedy Bunch at (317) 977-1420 or kbunch@hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
