OIG and DOJ Take Increasingly Aggressive Fraud and Abuse Enforcement Posture

By Daniel Murphy

Bradley Arant Boult Cummings

If you have been following recent Department of Justice (DOJ) and Department of Health and Human Services (HHS) fraud and abuse enforcement efforts, you will be forgiven if you thought you had mistakenly tuned in to a 1980’s Chuck Norris film or an installment of professional wrestling’s Friday Night SmackDown.

Chuck Norris and Lee Marvin starred in the 1986 classic “The Delta Force”, while the DOJ and HHS jointly launched a “Medicare fraud strike force”, known as the “H.E.A.T. Task Force”, in 2009.  “H.E.A.T” stands for health care fraud prevention and enforcement action team.

In the 1980s, the World Wrestling Federation’s Jimmy “Superfly” Snuka and Junk Yard Dog delivered numerous smackdowns against their opponents, while the HEAT Task Force recently executed a large-scale, coordinated series of health care fraud and abuse charges against nearly one hundred individuals and billed it as a “takedown.”

On October 4, 2012, the DOJ and HHS announced that the HEAT Task Force had charged 91 individuals in seven cities with various criminal Medicare fraud violations that resulted in $429.2 million in improper Medicare payments.  The individuals charged in the task force operation included physicians, nurses and other licensed health care professionals.  The DOJ press release regarding this operation can be accessed here:  http://www.justice.gov/opa/pr/2012/October/12-ag-1205.html.

In addition to numerous individual charges and arrests, the HEAT Task Force has carried out other multi-jurisdictional, multi-agency raids like the most recent one on October 4.  In 2010, for example, the HEAT Task Force charged or arrested 94 physicians, health care company owners, and other for fraudulent Medicare claims worth $251 million.

The October HEAT Task Force raids came on the heels of a Government Accountability Office (GAO) report released in September 2012 (http://www.gao.gov/products/GAO-12-820) that detailed the scope and types of fraud identified by HHS and other agencies during the year 2010.  According to the GAO report, the DOJ and HHS investigated 10,187 cases of fraud against the Medicare, Medicaid and CHIP programs.  Of these cases, 7,848 involved criminal health care fraud and 2,339 were civil matters.  The cases described in the GAO involved every type of health care provider, located all across the country, and included a broad array of activity.

The GAO report is notable not only for the vast scale of fraudulent activity it documents, but also for the massive amount of government investigatory and prosecutorial resources that have been deployed to combat this activity.

One of the few areas of bipartisan agreement that existing during the policy debates leading up to the passage of the Affordable Care Act (ACA) was the need to reduce fraud, waste and abuse in Medicare and other federal health care programs.  Prior to the passage of the ACA, Congress passed the Fraud Enforcement and Recovery Act (FERA) in 2009.  In addition to many other enforcement tools FERA gave the federal government, the law included hundreds of millions of dollars in appropriations to fund fraud and abuse enforcement.

The developing track record of the HEAT Task Force and recent DOJ and HHS enforcement efforts suggests that these federal appropriations are now translating into action and large recoveries of improper federal health program payments.  With a continuing public appetite for federal deficit control, especially in the arena of health care spending, don’t expect the aggressive fraud and abuse enforcement stance of the DOJ and HHS to relax any time soon.