Control of fraud and abuse in Medicare and Medicaid.

This Comment explores issues concerning the control of fraud and abuse in health programs financed with public funds, specifically the Medicare and Medicaid programs. It summarizes the nature, scope, and possible causes of what some regard as a fraud and abuse "crisis," and points out the difficulties and obstacles facing those who attempt to develop legislative and executive action aimed at controlling fraud and abuse. Recent federal initiatives in fraud and abuse control are examined, and a brief summary of key provisions of H.R. 3 (the Medicare-Medicaid Anti-fraud and Abuse Amendments, which may prove to be a landmark piece of legislation in this area) is provided. The author emphasizes that more effective control of fraud and abuse is necessary if further expansion of government financing of health programs, including national health insurance, is to occur in the near future. At the same time, caution must be taken not to neglect the appropriate use of other mechanisms necessary for reducing the costs of medical care and improving its quality. In addition, it is likely that efforts to stem fraud and abuse will raise important medicolegal and public policy issues that will require careful interdisciplinary consideration.     

Special report on reimbursement. Final Medicare fraud and abuse safe harbors are published

There has been great concern in the health care industry that business arrangements that do not comply with the Safe Harbors will automatically be deemed illegal. HHS has confirmed that this is not so; the commentary to the Regulations expressly states that "The failure of a particular business arrangement to comply with these provisions does not determine whether or not the arrangement violates the statute because...this regulation does not make conduct illegal. Any conduct that could be construed to be illegal after the promulgation of this rule would have been illegal at any time since the current law was enacted in 1977....This regulation is intended to provide a formula for avoiding risk in the future." 56 Fed. Reg. at 35955. In the final analysis, the majority of transactions will fall outside the Safe Harbors and thus will continue to be judged by the standards established by the Medicare antifraud statute enacted 14 years ago. Under these standards, as HHS states, "the degree of the risk [in any particular transaction] depends on an evaluation of the many factors which are part of the decision-making process regarding case selection for investigation and prosecution." Id. at 35954. Providers that are mindful of these criteria should therefore still be able to accomplish, with relative safety, transactions that do not qualify for Safe Harbor protection.     

Medicare and State health care programs: fraud and abuse; OIG anti-kickback provisions--HHS. Final rule

This final rule implements section 14 of Public Law 100-93, the Medicare and Medicaid Patient and Program Protection Act of 1987, by specifying various payment practices which, although potentially capable of inducing referrals of business under Medicare or a State health care program, will be protected from criminal prosecution or civil sanctions under the anti-kickback provisions of the statute.     

Medicare and state health programs: fraud and abuse; issuance of advisory opinions by the OIG--HHS. Final rule

In accordance with section 205 of the Health Insurance Portability and Accountability Act of 1996, this final rule sets forth the specific procedures by which the Department, through the Office of the Inspector General (OIG), in consultation with the Department of Justice (DoJ), will issue advisory opinions to outside parties regarding the interpretation and applicability of certain statutes relating to the Federal and State health care programs. The procedures for submitting a request and obtaining an advisory opinion from the OIG were established through interim final regulations published in the Federal Register on February 19, 1997. In response to public comments received on these interim final regulations, this final rule revises and clarifies various aspects of the earlier rulemaking.     

Medicare and state health care programs and program fraud civil remedies: fraud and abuse; civil money penalties inflation adjustments--Office of Inspector General, HHS. Final rule

In accordance with Federal Civil Monetary Penalty Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996, this final rule incorporates the penalty inflation adjustments for the civil money penalties for health case fraud and abuse. These inflation adjustment calculations are not applicable to those civil money penalties contained in the Social Security Act, which are exempted from this adjustment.     

Medicare and Social Security: fraud and abuse; civil money penalties for misuse of certain terms, symbols and emblems--HHS. Final rule

This final rule implements section 428(a) of Public Law 100-360 which authorizes the imposition of civil money penalties for the use--in advertising, solicitations or other communications--of certain words, letters, symbols or emblems associated with the Department of Health and Human Services' Social Security and Medicare programs in a manner that the user knows, or should know, would convey a false impression that (1) the communicated item was approved, endorsed or authorized by the Department or its programs, or (2) the responsible person or organization has some connection with, or authorization from, the Department or these programs. This rulemaking is designed to assist in protecting citizens from misrepresentations concerning the services offered and programs administered by the Social Security Administration and the Health Care Financing Administration.     

The brave new world of Medicare and Medicaid fraud and abuse enforcement: whistle-blowers, pre-filing agreements, and voluntary disclosure

Providers participating in the recent wave of mergers, acquisitions, and affiliations may have unwittingly expanded their false claims exposure because many false claim-type situations are difficult, if not impossible, to identify in pre-closing due diligence. In addition, the possibility of retrospective characterization of ordinary billing mistakes as "false claims" increasingly introduces significant uncertainty to the average provider's financial future. To date, the single most effective approach to this problem is an independent compliance review to identify and resolve any existing exposure, including voluntary disclosure if appropriate, and an ongoing compliance program to communicate to all employees not only the content of applicable rules but also the genuine commitment of management to ensure continuing compliance above other concerns.     

Methodological challenges to government sampling techniques in civil fraud and abuse cases

This Article discusses the use of statistical sampling in Medicare and Medicaid fraud and abuse audits. The author reviews cases in which government sampling methodologies have been challenged. Finally, the author describes the various alternatives available for challenging the validity of the statistical sampling used by the government in its audits.     

Medicare and state health care programs: fraud and abuse; issuance of advisory opinions by the OIG--HHS. Interim final rule with comment period

In accordance with section 205 of the Health Insurance Portability and Accountability Act of 1996, this final rule establishes a new part 1008 in 42 CFR chapter V to address the new OIG advisory opinion process. Specifically, these regulations set forth the specific procedures by which the Office of Inspector General, in consultation with the Department of Justice, will issue advisory opinions to outside parties regarding the interpretation and applicability of certain statutes relating to the Medicare and State health care programs.