DOJ wants no breaks for voluntary disclosure
White House plan also would give DOJ the power to level subpoenas in civil lawsuits
New legislation backed by the Clinton administration may further undermine the government’s failed efforts to make voluntary disclosure of wrongdoing an attractive option for health care providers, experts say.
Federal sentencing guidelines would be changed so that providers would not get a break for admitting liability in criminal cases, according to a health fraud provision that will be included in a crime bill announced by Vice President Al Gore. "Currently, penalties for health care fraud allow for significant leniency if the offending provider or corporation admits responsibility for the fraudulent act, making it possible for individuals and entities convicted of defrauding Federal health care programs out of millions of dollars to receive a sentence of probation with limited financial culpability," said Vice-President Gore.
"It seems the Clinton administration is undermining its own effort to get providers to voluntarily disclose," says Ankur Goel, a former Justice Department health fraud prosecutor. Providers will be much more cautious about stepping forward in any potential criminal case, such as one involving kickbacks, if admitting liability doesn’t gain them any leniency. For that matter, a hospital might be more reluctant to do a retrospective audit that could uncover violations it would be obligated to report if the hospital wouldn’t get a break for voluntarily reporting.
Goel says he believes this is the next step in a government campaign to impose a legal obligation upon providers to report misconduct. He points to OIG’s model compliance plans, which typically give providers 60 days to report improper conduct. The government reasons that if self-disclosure is mandatory, then there’s no need to reward companies for merely obeying the law, according to Goel.
Another ominous element of the White House plan would give the Justice Department the power to levy subpoenas in civil cases. Currently, U.S. Attorneys are essentially restricted to levying subpoenas in criminal cases. That means federal prosecutors either have to ask OIG to send out an administrative subpoena, or ask Attorney General Janet Reno to personally sign a special DOJ civil subpoena. "DOJ doesn’t want to rely on OIG," and has long chafed at its lack of civil subpoena powers, adds Goel, now at McDermott Will Emery in Washington, DC. He expects that if prosecutors are given more freedom to demand documents, they will take full advantage of that authority.
DOJ spokeswoman Chris Watney says the plan probably will go before Congress around May. But while some parts of the plan suggest a tougher enforcement environment is coming, other aspects of it seem to be more for show than effect. Indeed, it may not be coincidence that the plan was unveiled a few weeks after an OIG audit estimated that Medicare paid $12.6 billion in overpayments last year. The proposed legislation aims to cut that figure by: