GAO slams U.S. attorneys over False Claims Act
August 23, 1999 3 minutes read
GAO slams U.S. attorneys over False Claims Act
Stung by criticism, the Department of Justice vows to go above and beyond’ GAO’s recommendations
The General Accounting Office (GAO) hammered the Department of Justice (DOJ) Aug. 6 for its "superficial" oversight of how U.S. attorneys use the False Claims Act (FCA) in health care fraud cases.
The GAO’s report comes slightly more than one year after Deputy Attorney General Eric Holder issued new FCA guidelines designed to reign in overzealous prosecutors. But the jury’s still out on what real impact GAO’s missive will have on the U.S. attorneys’ offices that wield the most potent tool in the Justice Department’s arsenal.
The GAO’s tongue-lashing of the DOJ marks the latest round in an ongoing tug-of-war between Congress, the DOJ, and the health care industry over the "big stick" approach adopted by many U.S. attorneys’ offices. "The purpose of the guidelines was to establish more uniformity and prevent significant abuses, which were definitely going on," says health care attorney Greg Luce, who specializes in FCA cases. "But it has not seemed to work in the areas we need it most.
"A number of the U.S. attorneys’ offices we deal with have been responsive to requests for information and clarification of their legal position, but many have not," reports Luce, a partner with James Day in Washington, DC. In fact, he says many offices routinely decline to explain the origins of their investigation. "Instead, they proceed with data that we have found — in literally every district that we were in — to have significant flaws."
DOJ’s Special Counsel for Health Care Fraud, John Bentivoglio, already has vowed to go "above and beyond" GAO’s recommendation to develop guidance for reviewers including specific steps to determine whether offices are following last year’s guidelines. He’s also agreed to require reviewers to independently determine whether offices are complying with that guidance.
DOJ spokeswoman Chris Watney says exactly what shape those two mandates might take or when they will be announced is not yet known. But several sources in contact with Bentivoglio’s office take him at his word. "I think the DOJ was surprised at how sharp GAO’s criticism was, and they are reaching out now looking for ways to improve things," says one.
The Chicago-based American Hospital Association is hoping the report sparks some interest in Congress. But unlike last year, the issue is not high on Congress’ agenda.
"Senator Grassley does not have any plans for legislation or hearings," says Jill Gerber, Grassley’s spokeswoman on the Senate Special Committee on Aging. Several congressional sources say the chances are that other committees with oversight responsibility will follow Grassley’s "wait-and-see" approach to future DOJ activities in this area.
Susan Dryden, spokeswoman for Rep. Bill McCollum (R-FL), says McCollum may use his position as Chairman of the House Judiciary Crime Subcommittee to brush the dust off legislation he introduced last year that would have prevented investigators from applying the FCA in cases where billing mistakes occurred but no actual fraud is proven. But Dryden reports that McCollum is holding his fire until his office has reviewed GAO’s most recent findings.
Gerber says Grassley will continue to monitor DOJ’s implementation and use of the guidance. In fact, last week the Iowa Republican received a written pledge from David Odgen, the pending nominee for DOJ’s Civil Division, that he is committed to implementing last year’s guidelines as well as the additional steps recommended by GAO.
In its report, GAO cites numerous examples of overreaching on the part of U.S. attorneys’ offices around the country. Here are some of the more egregious violations cited by GAO:
- Most of the offices engaged in the laboratory unbundling investigation had not sufficiently analyzed the claims data to determine if the "pervasiveness and magnitude" of errors warranted a violation.
- Officials at one office admitted making FCA allegations against 75 hospitals in 1997 before obtaining sufficient evidence that the hospitals knowingly submitted false claims.
- In 1997, one office alleged that about 10 hospitals had violated the FCA even though that office lacked evidence that the claims were false — let alone knowingly submitting false claims.
- One office sent letters to three dozen hospitals in 1997 alleging false claims and requesting self-audits of laboratory billings without verifying the accuracy of the data behind the allegations.
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