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Outlook 2022: COVID-19 Fraud May Factor in Cases 'Based on Different Allegations'

Although many enforcement targets will be familiar in 2022, with whistleblowers and the Department of Justice (DOJ) pursuing kickbacks, medical necessity cases, Medicare Advantage fraud and other violations, there will be another dimension, lawyers said. The use of COVID-19 relief funds will be part and parcel of many false claims investigations into other matters, and DOJ again is putting the spotlight on the people who pull the strings in a corporate fraud case.

“It is a more comprehensive approach rather than just paying money, settling and being done with it,” said Colette Matzzie, an attorney with Phillips & Cohen, a whistleblower firm in Washington, D.C. “It is requiring a greater level of corporate accountability and, at times, changes in corporate governance.” COVID-19 relief fraud, including abuse of the Provider Relief Fund and Paycheck Protection Program, is not just a target of the DOJ in and of itself. “It is an overlay on everything,” Matzzie said. “DOJ will look for misuse of COVID funds as an additional area of investigation on a case that might have originated based on different allegations.”

The COVID-19 waivers also are seen as ripe for False Claims Act (FCA) cases if they have been misused. “We will start to see fallout from things that happened during the public health emergency,” said attorney Judy Waltz, with Foley & Lardner LLP. She doesn’t expect DOJ to be forgiving of big mistakes because the pandemic is not breaking news anymore. As the cliché goes, it’s the new normal.

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