Holder leav­ing legacy of ac­tive fraud en­force­ment

Modern Healthcare - - NEWS - By Bob Her­man

The six-year ten­ure of de­part­ing U.S. At­tor­ney Gen­eral Eric Holder will be re­mem­bered by health­care groups as a time of ag­gres­sive mea­sures to com­bat health­care fraud and abuse.

Un­der Holder, who an­nounced last week that he is step­ping down, the Jus­tice Depart­ment ramped up le­gal ef­forts to pre­vent and pe­nal­ize fraud. Those en­force­ment ef­forts have some­times an­gered in­dus­try groups that say the feds have been overzeal­ous. “There has been ever-in­creas­ing scru­tiny of com­pli­ance … in ev­ery stage of the business cy­cle,” said Larry Freed­man, an at­tor­ney at Mintz, Levin, Cohn, Fer­ris, Glovsky and Popeo, who worked at Jus­tice from 1991 to 2004.

In fis­cal 2013, HHS and Jus­tice re­cov­ered $4.3 bil­lion from fraud cases. Over the past four years, that to­tal was more than $19 bil­lion.

Holder fre­quently praised the gov­ern­ment’s Health Care Fraud Preven­tion and En­force­ment Ac­tion Team, known as the HEAT ini­tia­tive. The ef­forts of Medi­care Fraud Strike Force teams in nine ci­ties have led to sev­eral large crim­i­nal fraud busts.

“Medi­care is a sa­cred com­pact with our na­tion’s se­niors, and to pro­tect it, we must re­main ag­gres­sive in com­bat­ing fraud,” Holder said in May in an­nounc­ing that 90 doc­tors and health­care pro­fes­sion­als were charged with scams.

Holder’s Jus­tice Depart­ment also has been ag­gres­sive in tak­ing civil-fraud en­force­ment ac­tion. Jus­tice pushed health­care gi­ants in­clud­ing Com­mu­nity Health Sys­tems, McKes­son Corp. and Shire to make mul­ti­mil­lion-dol­lar set­tle­ments. Physi­cian-owned dis­trib­u­tor­ships of med­i­cal de­vices have been mon­i­tored for False Claims Act al­le­ga­tions. The agency also has called for greater scru­tiny of elec­tronic health records, ar­gu­ing that EHRs could en­able hos­pi­tals to up­code claims.

Jus­tice’s em­pha­sis on fraud preven­tion has meant in­creased au­dits, reviews and ad­min­is­tra­tive work. The gov­ern­ment has used data an­a­lyt­ics to stop Medi­care pay­ments for sus­pi­cious billing pat­terns—a project the CMS said saved $210.7 mil­lion in fis­cal 2013 alone.

While Jus­tice has done good work in mon­i­tor­ing po­ten­tial fraud ar­eas, the gov­ern­ment’s au­dit­ing process has be­come a labyrinth for hon­est providers, Freed­man said.

The White House re­port­edly is eye­ing a num­ber of peo­ple to suc­ceed Holder, in­clud­ing Solic­i­tor Gen­eral Don­ald Ver­rilli, with pos­si­ble Se­nate con­fir­ma­tion hear­ings dur­ing the lame-duck ses­sion after the elec­tions.

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