The editorial “Off the hook for fraud and abuse” incorrectly suggests that recent U.S. Department of Justice actions help white-collar criminals, when in fact DOJ policy reduces unwarranted fraud investigations that will free up resources to pursue real cases.
I’m a CPA/management consultant with over 45 years of healthcare industry experience. I’ve represented hospitals and other providers as an expert witness in civil and criminal healthcare fraud cases.
Fraud investigations create a substantial burden on providers to dispute. Suspension of cash flow can result in bankruptcy before having any chance at defense. Accordingly, a tightening up over such audits is welcome news for providers. The editorial mentions a data analytics firm that had 11 cases dismissed by the DOJ. This was proper. Data fluctuation may be an “indicator” of a problem; but it is not “evidence” of anything. A whistleblower must have firsthand knowledge of facts that evidence a fraud or abuse transaction occurred. Analytics fail that test and rightfully should not be a basis for investigation.
Additionally, challenges to medical necessity frequently arise from differences in interpretation over the extent of clinical documentation. These cases become “he said, she said” disputes that are often settled without proof of wrongdoing. In too many cases, auditors apply outdated standards, inapplicable regulations, or fail to consider local coverage decisions that allow departures from standard published guidance. Whistleblowers frequently don’t have an in-depth understanding of the rules and overstate claims of fraud and abuse.
The editorial also suggested that the Supreme Court decision regarding disproportionate-share hospital payments was used by DOJ to either dismiss or fail to pursue additional fraud cases because the CMS issued an internal memorandum to acquiesce to such a decision. First, Supreme Court decisions are law and must be followed. Second, this case involved the failure by the CMS to provide adequate notice and comment on guidance. Accordingly, the guidance was unenforceable.