HHS posts recoupment and exclusion records

Last year, the federal government raked in more than $1.7 billion in judgments, settlements, and administrative impositions in health care fraud cases and proceedings, the Department of Health and Human Services (HHS) reported April 30. This marks the largest return to the government since the inception of the national Health Care Fraud and Abuse Control Program, which is funded by the Health Insurance Portability and Accountability Act.

According to HHS, the fifth year of the program witnessed a continuation of the collaborative efforts of federal and state enforcement and oversight agencies to prosecute health care fraud. Several former government attorneys say that trend is likely to continue.

"If anything, I think state Medicaid Fraud Control Units [MFCUs] and state attorneys general are being much more proactive now than in the past with respect to health care fraud enforcement," says former HHS’ Office of Inspector General (OIG) Counsel Howard Young, now an attorney with Arent Fox in Washington, DC.

Young says state MFCUs have received a lot of training in recent years and are taking a page from the federal government’s successful efforts in the area of health care fraud. "They realize that states can also be successful, not only on the criminal side but on the civil side, and they are really increasing their pursuit of these types of cases," he says.

One area Young points to is the area of pharmaceuticals, where many states now are getting out in front of the federal government in terms of pricing issues and Medicaid rebate issues. Margaret Hutchinson, assistant U.S. attorney in Philadelphia, says hospitals should pay close attention to this trend as well, because the issues being investigated in this area increasingly implicate physicians.

Hutchinson says compliance officers should examine the issues addressed in the TAP Pharmaceutical corporate integrity agreement as a road map for what areas the government is investigating. She says one such area is the government’s concern that physician judgement is being compromised by the approach pharmaceutical companies are using to get physicians to prescribe a particular drug.

Was it compromised so much that it resulted in a quality-of-care issue? Was another drug potentially a better choice, but this one was chosen because of the inducements? Those are questions compliance officers must ask, she says.

Former Justice Department attorney John Bentivoglio, now an attorney with Arnold and Porter in Washington, DC, says the April 30 report does not reveal any new groundbreaking approaches to cracking down on health care fraud but rather a continued focus on federal state cooperation, reliance on qui tam complaints as a basis for the largest settlements, and the continued use of both criminal and civil statutes by the Department of Justice.

Combined with prior-year judgments, settlements, and administrative impositions, HHS also collected more than $1.3 billion.

In addition, more than $1 billion of the funds collected and disbursed in 2001 were returned to the Medicare Trust Fund and another $42.8 million was recovered as the federal share of Medicaid restitution.

The agency also reports that federal prosecutors filed 445 criminal indictments in health care fraud cases last year, and that a total of 465 defendants were convicted for health care fraud-related crimes in 2001. There also were 1,746 civil matters pending, and 188 civil cases filed in 2001.

HHS says it excluded 3,756 individuals and entities from participating in the Medicare and Medicaid programs or other federally sponsored health care programs, most as a result of convictions for crimes relating to Medicare or Medicaid, for patient abuse or neglect, or as a result of licensure revocations. "This record number of exclusion actions is the result of successful collaboration with state Medicaid Fraud Control Units and state licensure boards," says HHS.