Editor's note: The U.S. Justice Department under President Barack Obama has claimed healthcare fraud as a priority and also is battling the legal challenges to the healthcare reform law. Modern Healthcare reporter Joe Carlson spoke with Assistant Attorney General Tony West, head of the department's Civil Division, before his April 27 speech sponsored by the American Bar Association at the University of Chicago. Below is an edited transcript of the video interview.
Going after fraud
Tactics hold corporations, individuals accountable
Joe Carlson: Can you tell me a little bit about your enforcement priorities over the next year in healthcare?
Tony West: With healthcare, one of the main goals we are trying to do is curb healthcare fraud because it not only means that taxpayer dollars are lost that would otherwise go to paying for bona fide care or bona fide medicine. But it is also the type of fraud that has an impact on the quality of care that patients receive, and the safety of that care.
Carlson: And is there anywhere in specific, specific enforcement areas that you would look at, in terms of, say, hospital billing or physician activities?
West: First, we are clearly going after corporations and individuals who perpetrate healthcare fraud, either because they are paying kickbacks to physicians or they are marketing drugs for indications or purposes that have not been approved by the FDA or they are engaging in the type of billing Medicare and Medicaid for medical devices for services that aren't rendered. So that's been a big focus. Particularly with individuals we think it's important to focus not just on corporate healthcare fraud, but also the individuals who perpetrate it.
Carlson: You talked about … having enforcement actions and regulatory actions against not just organizations but individuals. Can you tell me a little more about that?
West: One of the things that we focused on over the last two years is not only holding corporations responsible, which we must do, but also holding individuals responsible. So when you look at some of the cases that we've brought over the last two years, or that we've resolved over the last two years. They include criminal charges against sales executives for large pharmaceutical companies. They include indicting in-house counsel of a major pharmaceutical company for what we believe has been obstruction of an FDA investigation. They involve individual physicians who have either been performing medical procedures that they're not qualified to perform or perhaps have falsified what services they did render in order to increase their Medicaid or Medicare reimbursements. You know, you see a whole range of activities, but the point is that we recognize that we have to hold individuals responsible just like companies. And we've been very aggressive, I think appropriately so, but aggressive in doing so.
Carlson: And has the Justice Department or the Civil Division made progress in data-mining techniques and getting away from the sort of “pay and chase” model of enforcement?
West: Absolutely. I think we are, certainly in the Department of Justice, a fan of some of the data-mining techniques that will allow us to more effectively zero in on fraud. Of course, there are a number of pieces of evidence that you put together whenever you put together a fraud case. And so there is not any one particular item or any one particular method or technique that will drive the entire case. But there is no question that the pay-and-chase model is something that CMS has been trying to rectify and we've been trying to work with them. It's something that we recognize, something that Secretary Sebelius and Attorney General Holder, everybody sort of recognizes that there are things that we need to do, techniques that we need to practice that will allow us to get in front of the healthcare fraud curve.
Carlson: At least one judge has said that the Justice Department is sort of dragging its feet a little bit and dragging out (the healthcare reform) litigation while the implementation is going on. Why not get to the Supreme Court as soon as you can?
West: The Supreme Court actually denied the … request that the state of Virginia had made to try to get it up to the Supreme Court. I don't know why the court did that, but the fact is because Virginia's case is already set for argument, (Virginia's petition) probably would not have gotten the case up to the Supreme Court any sooner than through the normal channel … But I think the more fundamental thing is that it's important to let this issue move through the normal channels because it's important for the appellate courts to weigh in, both with their legal analysis and their experience and wisdom, because all of that is important to setting the stage for what I think most people believe will be a case that ends up in the Supreme Court. That process is one that really need not be short-circuited. It's valuable. It's valuable to the court, and it is I think certainly valuable to the public discussion about why the Affordable Care Act is constitutional, why it's necessary, and why it is benefitting so many people, so many Americans.
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