The Insurance Fraud Group at Wiley Rein plays a unique role in representing the interests of the insurance industry in combating fraud. At a time when insurers face attacks from legislators, regulators, and policyholder organizations, insurance fraud is an area where insurers can aggressively support the public interest and take significant steps toward keeping premiums at reasonable levels. In addition, consistent, active anti-fraud efforts demonstrate that the industry is committed to law enforcement activity and aggressive protection of the interests of policyholders and shareholders. An aggressive anti-fraud effort also may assist insurers who are dealing with a new phenomenon: investigations of insurer practices by law enforcement officials.
With more than 20 years of experience representing insurers in fraud matters, our attorneys have the necessary knowledge and skills to advise on a wide range of litigation, counseling and legislative matters. We provide clients with a blend of experience in government, law enforcement, and private practice that well serves their needs in this complex and critical area.
Our attorneys not only have extensive experience in the representation of insurers in fraud-related litigation, but also have in-depth substantive knowledge in many of the areas where insurers need expert advice.
Insurance Fraud Litigation | Our Approach to Insurance Fraud Cases | Counseling, Insurer Education, and Legislative Activities | Defensive Activities for Insurers | Privacy | Contact Us
Insurance Fraud Litigation
Wiley Rein is the leading firm in the country in assisting insurers in fighting fraud and has pioneered the representation of insurers in pursuing recovery of moneys defrauded from them. Wiley Rein represents health and property/casualty insurers in a variety of fraud recovery activities throughout the United States, against individuals, laboratories, national medical providers, hospitals, medical clinics, and others committing fraud. In addition, we work closely with prosecutors and investigators around the country in pursuing criminal penalties for fraudulent providers, and frequently help insurers to respond to bad faith claims involving accusations of conspiracy, fraud, and deceptive trade practices.
In addition to our civil recovery work, our attorneys also represent insurers in pursuing recovery through the criminal process of moneys defrauded from them. We work directly with prosecutors in support of restitution awards in major fraud cases, have appeared as amicus curiae in important restitution litigation, and worked successfully for the enactment of restitution legislation in Congress. We also work closely with various law enforcement officials concerning the distribution of forfeited assets to insurers and can assist in tackling litigation arising from antitrust issues.
Our recent cases have included:
- Representing groups of health insurers in major national Racketeer Influenced and Corrupt Organizations Act (RICO), Employee Retirement Income Security Act (ERISA), and state law-based insurance fraud suits and investigations involving health care fraud by psychiatric hospitals, home care providers, rehabilitation hospitals, clinical laboratories, dialysis companies, and dental groups.
- Representing property/casualty insurers in RICO and fraud litigation against chiropractic clinics, medical mills, and personal injury attorneys.
- Representing insurers in smaller cases involving fraudulent activities by individual physicians and insureds.
- Representing insurer victims in RICO insurance fraud criminal cases.
- Defending malicious prosecution, defamation, and invasion of privacy suits around the country.
- Evaluating numerous national RICO suits against various health care providers, attorneys, and other insurance claimants.
- Filing amicus curiae briefs, before the Supreme Court, lower federal courts and state supreme courts, on restitution, waiver of co-payment, victim participation, and other fraud-related issues.
Our Approach to Insurance Fraud Cases
Wiley Rein has had the most extensive and varied experience of any law firm in the country in investigating and litigating health care fraud cases. We have been involved in virtually every significant fraud matter litigated over the last decade.
Our litigation experience in fraud cases is unsurpassed. More than half of the lawyers in our firm are litigating cases in state and federal courts throughout the United States, including some of the largest and most complex commercial disputes in the country. More than a dozen of our partners have fraud-related litigation experience, on cases ranging from “single payer, single defendant” matters to larger cases involving as many as 37 insurers. We also have a number of junior lawyers who regularly practice in this area.
Wiley Rein’s approach to these matters has been straightforward and successful. We have carefully, creatively, and judiciously developed each case by designing the initial investigation, shaping the legal and evidentiary parameters, formulating approaches to proving both liability and damages, and providing both imaginative strategies and hard-nosed assessments of the strengths and weaknesses of evolving investigations. We have a depth of experience in conceptualizing and managing the development of a civil insurance fraud case, and have demonstrated the judgment or initiative to separate the good case from the bad one.
An important effect of our work in insurance fraud cases has been the reputation we have earned among the community of potential defendants and their counsel. Wiley Rein is widely recognized as having pioneered multi-insurer anti-fraud litigation, as having “slugged it out” with major national providers to successful conclusions, and as being prepared to litigate where an appropriate settlement cannot be reached. This ability to litigate fraud cases enhances our ability to settle them without the need for extensive litigation. Through our extensive representation of the National Health Care Anti-Fraud Association (NHCAA), the National Insurance Crime Bureau (NICB), the Coalition Against Insurance Fraud, and other industry trade groups, Wiley Rein is recognized as the leading private sector voice on many anti-fraud issues affecting the insurance industry as a whole. This reputation carries with it a gravitas that can only help insurers in effectively resolving the issues central to these investigations.
Moreover, as part of our overall Insurance Fraud and Litigation practices, Wiley Rein has an extensive investigative capability. Our capabilities draw on both traditional legal skills as well as a variety of non-traditional expertise that we have developed through law enforcement experience and our extensive private sector activity. Much of the firm’s practice in recent years has involved sophisticated investigations that have been conducted outside the formal processes of civil discovery. While Wiley Rein attorneys work in uncovering insurance fraud has been the most prominent area of our investigative practice, we also conduct extensive inquiries and investigations related to defense procurement fraud and other aspects of the firm’s legal activities.
Counseling, Insurer Education, and Legislative Activities
Wiley Rein has the broadest representation in the country advising the insurance industry on fraud issues. At the association level, we act as general counsel to the NHCAA, whose members are private insurance carriers, health care reimbursement organizations, Blue Cross and Blue Shield organizations, and law enforcement and regulatory agencies. We also act as counsel to the NICB, the property-casualty industry group that investigates criminal insurance fraud in cooperation with federal and state law enforcement agencies. These representations encompass virtually all aspects of insurer anti-fraud efforts, including legislative advice, analysis of investigative operations, litigation, and compliance issues. We also have represented the Blue Cross Blue Shield Association, the Health Insurance Association of America, and the Coalition Against Insurance Fraud on a wide range of anti-fraud activities. We represent the insurance industry in fraud cases—not providers, claimants, or policyholders.
Beyond these association representations, our counseling, educational, and legislative activities on behalf of the insurance industry are designed to advise insurers about the appropriate guidelines for their anti-fraud operations, strategies for individual investigations and lawsuits, and claims handling and legal strategy for fraud investigations. In today’s environment, insurers need to understand the risks and opportunities of active fraud fighting. Our Insurance Fraud Team works with companies in structuring their anti-fraud activities, advises them on claims decisions related to fraud investigations, assists insurers in preparing cases for criminal prosecution, and evaluates the legal strategy for defending against claims brought by the targets of fraud investigations or the use of the legal process to recover the proceeds of fraud.
Wiley Rein also has been involved in a wide range of legislative and regulatory activities related to insurance fraud. We have drafted anti-fraud legislation at both the state and federal level to address various fraud issues, including, most recently, model state statutes for the NHCAA. On behalf of a single insurer, we assisted in the successful passage of legislation amending the federal Victim and Witness Prosecution Act, which now provides broad restitution for all insurer victims of widespread fraud schemes. We have advised numerous congressional committees on current anti-fraud activities and proposals for additional legislative change, particularly in the health care area. In general, our attorneys work closely with both individual insurers and trade associations to formulate legislative strategy concerning fraud, and to provide background for legislative activity to improve the ability of the private insurance industry to fight insurance fraud.
Defensive Activities for Insurers
Health care fraud enforcement has become a top priority of the U.S. Department of Justice (DOJ) and a variety of other state and federal law enforcement organizations. Coupled with this priority status is an enhanced set of resources—both monetary resources, providing hundreds of new health care fraud prosecutors and investigators, and enforcement tools, such as the federal crime of health care fraud, asset forfeiture remedies, and enhanced civil, criminal, and administrative penalties.
Today, law enforcement agencies focus increasingly on the activities of managed care organizations and third-party payers. The government’s fraud investigations concerning insurers have targeted two major areas so far: government contracts and managed care. We utilize our anti-fraud experience to assist companies in implementing effective compliance programs that are designed to avoid or minimize exposure in the event that they become a target of a fraud investigation—or if they simply wish to expand their compliance activities as a proactive defensive measure. Our attorneys are experienced in handling investigations and litigation of False Claims Act (FCA) enforcement actions, defending against government actions and private qui tam or whistleblower actions.
By having worked closely with law enforcement officials around the country on joint investigations, we have a unique insight into the government’s enforcement activity, in terms of how they work and where their priorities are. We know the business of health insurers, property/casualty insurers, and managed care organizations and can work effectively and efficiently to help these companies handle the government’s enforcement activity. With that knowledge and our reputation, we can assist companies in navigating the intricacies of a government investigation.
We also work with insurers in designing and implementing a strategy to balance an aggressive posture toward fighting fraud in which the insurer is the victim of fraudulent practices, with an effective and responsible strategy for dealing with situations where the same insurer may be under investigation for having engaged in fraud. Our focus is on how best to confront this potential conflict—primarily how to reconcile an aggressive anti-fraud program, where cooperation with law enforcement is critical, with an appropriate defensive strategy that will reduce risks and enhance an insurer’s ability to defend investigations.
Most recently, Wiley Rein has been assisting the insurance industry in understanding and implementing the requirements of the new privacy regulatory regime, and analyzing how these enormous changes will affect the ability of insurers to engage in effective anti-fraud activity. The law of privacy is changing rapidly, and virtually no aspect of the insurance industry will be unaffected by these developments. We work with insurers to monitor and affect these developments, to understand and analyze the effects of new privacy rules on the business of insurance, and to develop business and legal strategies for effective compliance with these rules, in the financial services and health care industries and at the state and federal level, so that insurers can operate their businesses at the optimal level.
ISSUE: APRIL 2014
IN THIS ISSUE
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By Thomas W. Brunner and Cari Stinebower
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