It seems like there is not a day that goes by that I do not read a news article, press release, or e-mail blurb about a recent arrest or conviction concerning Medicare and/or Medicaid fraud and abuse. As evidenced by the statistics, enforcement related to fraud and abuse is increasing. Convictions under the Health Care Fraud and Abuse Control Program increased by over 27% between 2009 and 2011. The number of defendants facing criminal charges related to health care fraud and abuse increased by 74% from 2008 until 2011 (821 defendants versus 1,430 defendants). Thus, fraud and abuse enforcement is on the rise, and I suspect that is a trend that we will see continue.
In that regard, the Department of Health and Human Services ("HHS") and the U.S. Department of Justice recently announced a joint effort to detect and prevent fraud and abuse in the health care sector. A new initiative will join the public and private sectors in an effort to exchange data and information and allow better detection of fraud and abuse. Under the initiative, advanced technology and data analysis will be used to help identify where and when health care fraud is occurring. For example, the initiative anticipates new technology will allow payors to detect when services are billed for the same patient on the same day in two different cities, thereby indicating potential abuse.
As of the beginning of August, twenty-one (21) groups representing federal, state and private payors and other anti-fraud groups have voluntarily agreed to participate in the initiative. Among those groups are the Blue Cross and Blue Shield Association, Centers for Medicare & Medicaid Services, Coalition Against Insurance Fraud, Office of Inspector General, Humana, National Association of Insurance Commissioners, Travelers, UnitedHealth Group, Department of Justice, HHS, and WellPoint. The first meeting of the Executive Board, Data Analysis and Review Committee, and the Information Sharing Committee of the initiative is scheduled for September. Following such meeting, providers should have a better idea of how the initiative will operate and how the specific findings will be used.
According to Kathleen Sebelius, Secretary of HHS, "the partnership puts criminals on notice that we will find them and stop them before they steal health care dollars." Attorney General Eric Holder believes "this partnership is a critical step forward in strengthening our nation's fight against health care fraud."
The initiative is the latest of a number of programs that have been enacted to better detect fraud and abuse among providers. Many of these programs involve increased transparency, better communication, and tighter enforcement. For example, changes in the law have made it easier for the Department of Justice to investigate potential fraud and now allow Medicare to suspend payments to providers during an investigation of fraud. Additionally, Medicare has enacted a Fraud Prevention System, which screens fee-for-service claims before payment is tendered. Further, the Recovery Audit Contractor ("RAC") program has recently been expanded to include Medicaid, Medicare Advantage, and Medicare Part D programs.
As a result of these fraud and abuse efforts, the government has recovered $10.7 billion related to health care fraud over the past three (3) years. Due to the large potential recovery amount, I suspect we will continue to see a focus on fraud and abuse in the future, mainly through additional programs involving increased transparency and improved communication among payors.
Kelli Fleming is an associate with Burr & Forman LLP and practices exclusively within the firm's Health Care Practice Group.
