GAO approves DOJ’s False Claims Act oversight
GAO approves DOJ’s False Claims Act oversight
The General Accounting Office (GAO) argues in a report released this month that the U.S. Department of Justice (DOJ) has taken steps to improve its oversight of how U.S. Attorney’s Offices wield the False Claims Act. But leading health care attorneys contend that the report’s limited scope means that it would be a mistake to read too much into the agency’s findings.
"I think DOJ is trumpeting this as an affirmation that GAO auditors [concluded] that they were enforcing the False Claims Act correctly, and I don’t think that is true," argues John Boese of the Washington, DC-based Fried, Frank, Harris & Shriver. Instead, Boese says the GAO merely found that a limited review of four U.S. Attorney’s offices that had blatantly violated DOJ policy in the past are now more in line with DOJ guidance.
Boese points out that GAO earlier assessment showed local U.S. Attorney’s Offices filing False Claims Act claims when, even by their own admission, there was no evidence against hospitals other than the fact that they had billed a lot. "My question is, why didn’t the GAO go back to the Justice Department and say, Isn’t that prosecutorial misconduct and what have you done to those offices who violated DOJ guidelines?’" he says.
Boese also points out that GAO’s earlier review was based only on a sample of offices and was limited to DOJ’s handling of national initiatives. "It does not even begin to address abuse of the False Claims Act in ordinary cases," he says.
"It would have been interesting if they had talked to some of providers about DOJ’s compliance with these guidelines," says Ivy Baer, counsel for the American Association of Medical Colleges in Washington, DC. "I think the real issue is how these cases are developed and targeted."
Health care attorney Stuart Gerson of Washington, DC-based Epstein, Becker & Green takes a similar view. "On the defense side, we can look at cases and say the government has abused its discretion in leveraging what really are claims disputes with litigation under the False Claims Act," he asserts.
According to the GAO, the four U.S. Attorney’s Offices that were earlier found to be slow to incorporate DOJ’s False Claims Act guidance into their ongoing laboratory unbundling investigations now appear to be conducting these investigations in accordance with those guidelines or have abandoned their investigations under this initiative. The GAO declined to name the offices in question.
The GAO’s latest assessment follows an August 1999 report that gave DOJ a mixed review of its oversight capacity. According to the GAO, Justice has made "a concerted effort" to improve its oversight of U.S. Attorney’s Offices participating in national initiatives. The GAO said DOJ plans to place more emphasis on compliance with the its June 1998 False Claims Act guidance in its periodic evaluations and has initiated a requirement for offices to certify their compliance annually.
Gerson says he is not terribly surprised by the GAO’s findings. "There is a political mentality that is shared by the executive branch and Congress that believes that we need to help control health care costs through fraud litigation," he argues.
He says that mentality is a de facto substitute for the fact that Congress has been unable to come up with any systematic reform to deal with the entire reimbursement system.
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