Holder leaving legacy of active fraud enforcement

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.