Is the federal government's campaign against healthcare fraud just a sorry example of extortion and abuse of governmental power? In his commentary ("Fraud? Error? Feds don't care," June 23, p. 56), Michael Kendall, a lawyer representing healthcare providers under federal investigation, so contends. Drawing on rhetoric of both right-wing militants and civil libertarians, Kendall paints a picture of cynical federal bureaucrats armed with bloated budgets and Draconian powers extracting huge, unjustified settlements from hapless providers.
It is an ugly tale, but it is not true. On behalf of numerous health insurers, we and our colleagues at our law firm have spent the past five years investigating large-scale fraudulent practices committed by healthcare providers, much the same kinds of abuses targeted by the federal government. Criminal and quasi-criminal fraud is endemic in the American healthcare system, and both federal and private initiatives to combat it are necessary for the proper operation of that system. Indeed, private insurers as well as the government are often victimized by the same healthcare provider. This has led to Congress enacting the anti-fraud provisions of the Health Insurance Portability and Accounting Act of 1995, which facilitate cooperation between the private sector and the government in investigating healthcare fraud.
In our ongoing representation of insurers, we have found many instances of systemic fraudulent activity. In response, the implicated providers-often publicly held, for-profit corporations-complain, just as Kendall did, of procedural inequities and allegedly murky standards. We have found the level of criticism drops precipitously when providers are presented with the combined results of our extensive field investigation and review of billing data. Pre-litigation settlements are common, and if the case is litigated, providers have chosen to settle rather than face public disclosure of their practices. In one pending case, a physician pleaded the Fifth Amendment in response to our routine questions rather than describe his actions under oath.
The complex nature of the American healthcare finance system makes fraud downright attractive for some providers. That is the engine powering these schemes to defraud public and private payers, not misconduct by federal law enforcement officials. The healthcare system will work best for all concerned-including honest providers-if everyone can have confidence that providers are playing by the rules. In that context, it is in the public interest to ensure that federal officials have strong financial support and an arsenal of legal weapons because they are pitted against clever, well-heeled offenders.
Thomas W. Brunner
Wiley, Rein & Fielding