979 Health Care Fraud and Abuse Control Program -- Statement of Program Goals, Funding, Evaluation, Revisions

Statement of Program Goals

The overall goal of the Health Care Fraud and Abuse Program is to further enable the identification, investigation and, where appropriate, prosecution of those individuals and entities who commit fraud against the nation's health care delivery system. Also, the Program is to alert the public, service providers, industry groups, and consumers to such schemes; to identify systemic problems that permit fraud and abuse to occur and correct such vulnerabilities; to safeguard the confidentiality of health care information that is gathered for these law enforcement purposes; to educate consumers with the goal of preventing fraud and abuse; and to furnish the industry with guidance concerning permissible business practices arising from the provision of health care services and equipment.

Specifically, the goals of the Program are as follows:

1. Coordinate Federal, State and local law enforcement programs to control fraud and abuse with respect to public and private health plans.
   There are a wide range of entities at the federal, state and local levels responsible for enforcing the laws and regulations prohibiting fraud and abuse by the health care industry. These entities include criminal and civil prosecutors at the federal level, state prosecutors and Medicaid Fraud Control Units, to local prosecuting attorneys, regulatory agencies and licensing boards. While these entities may have jurisdiction over varying legal proscriptions, in the context of fraud against public or private health plans, they share one common goal: to detect and eliminate fraud and abuse by the health care industry.

   The program strives to maximize the effectiveness of these law enforcement programs by ensuring that there is both (1) adequate coordination on issues concerning enforcement policy as well as (2) appropriate sharing of information among law enforcement entities about specific law enforcement efforts. To these ends, the Attorney General and the Secretary shall establish specific guidelines to promote this coordination and shared information.

   Conduct investigations, audits, evaluations and inspections relating to the delivery of and payment for health care in the United States.

   The heart of the law enforcement effort is the fact-gathering that must occur in the investigative and audit stage of each case. In addition, fact-gathering is important in the regulatory oversight of the various agencies which have jurisdiction over segments of the health care industry. Law enforcement as well as regulatory agencies at the federal, state and local levels are charged with the responsibility to conduct investigation, audits and inspections and to utilize the tools at their disposal to undertake these responsibilities.

   The program's mission is to encourage and to maximize the ability to conduct fact-gathering by both law enforcement and regulatory agencies by ensuring that methods are understood by those responsible for these tasks, to provide guidance on how to maximize the effectiveness of these tools, to encourage the sharing of information among those responsible for fact-gathering and to set forth other guidelines that will ensure that investigations, audits, evaluations and inspections are conducted in a timely and efficient manner.

   Facilitate the enforcement of the civil, criminal and administrative statutes applicable to health care.

   Essential to the mission of the fraud and abuse control program is enforcement of existing statutes relating to fraud and abuse by the public and private health care sectors. While criminal statutes have as their purpose punishment and deterrence, civil statutes focus on returning monies lost to fraud to those defrauded, stopping the fraudulent conduct through injunctive means, and imposing monetary penalties. Administrative sanctions similarly may be used to impose civil monetary penalties, to prohibit those who have engaged in fraud or other wrongdoing from receiving further funds, and to ensure future compliance with the law.

   The use of these remedies in a coordinated fashion is an essential element of the fraud and abuse control program. By using all the government's complementary remedies, law enforcement both ensures that all aspects of fraudulent conduct are addressed, and sends a clear message to the health care industry that fraudulent conduct will not be tolerated. Also, by punishing the past conduct and recovering wrongfully obtained funds, and then addressing potential future misconduct by ensuring long term compliance, law enforcement furthers another critical mission of the program: prevention of fraud and abuse.

   An important element of promoting effective enforcement of the statutes applicable to health care is education and training of health care professionals and others -- including patients and their families -- about fraud and abuse.

   Provide industry guidance, including advisory opinions, safe harbors, and special fraud alerts relating to fraudulent health care practices.

   Prior to the passage of the Health Insurance Portability and Accountability Act of 1996, the HHS-OIG offered advice to the public with respect to the Medicare and Medicaid Anti-Kickback statute, 42 U.S.C. 1320a-7b(b), in the form of "safe harbor" regulations and Special Fraud Alerts. The safe harbor regulations specify particular lawful practices which are not subject to enforcement action under the Anti-kickback Statute. HHS-OIG also has published Special Fraud Alerts, which are intended to put the public on notice that the HHS-OIG considers particular practices violative of the law.

   Section 205 of the Health Insurance Portability and Accountability Act requires the HHS-OIG to solicit on an annual basis, in a Federal Register notice, proposals for (1) modifications to existing safe harbors, (2) additional safe harbors, and (3) special fraud alerts. HHS-OIG will evaluate each proposal received relating to safe harbors, and will respond either by proposing a new or modified safe harbor, or specify in a report to Congress why a proposal was rejected. OIG will also evaluate each proposal received relating to Special Fraud Alerts and will respond by publishing a fraud alert, if appropriate.

   In addition, the Department of Health and Human Services (in consultation with the Department of Justice) is now required to provide formal written advisory opinions to the public on the application of the anti-kickback statute, the safe harbor provisions and the other HHS-OIG health care fraud and abuse sanctions found in Section 1128, 1128A and 1128B of the Social Security Act. While the safe harbors and Special Fraud Alerts address hypothetical or generalized fact patterns, advisory opinions address particular factual circumstances of particular parties.

   2. Generally, Section 1128 contains the bases for exclusion of a party from the Medicare and Medicaid programs, and by operation of law, from all federal procurement and non-procurement programs. Section 1128A contains the Civil Monetary Penalty law, which proscribes penalties and assessments for claims to Medicare and Medicaid which are false, fraudulent, or otherwise not provided as claimed. Section 1128B contains criminal provisions specifically directed to Medicare and Medicaid, such as false claims and the prohibition on offering to pay or receive kickbacks.

   The purpose of these industry guidance provisions is to provide meaningful guidance principally to the health care provider community with respect to what conduct is lawful and unlawful under these statutes. However, it is also important that the process and content of the guidance not create obstacles to the prosecution of those who have violated the law. In his statement at the time of signing Pub.L. 104-191, the President specifically cited the concerns of the Secretary of HHS and the Attorney General, that "advisory opinions [relating to criminal statutes] could create complexities that would burden the efforts to enforce laws against health care fraud and abuse." As a result, the President directed the Departments of HHS and Justice, "to work closely together in implementing this provision to ensure that it promotes and protects Federal law enforcement activities relating to health care fraud."

   Establish a national data bank to receive and report final adverse actions against health care providers.

   The final mission of the Program is to establish a network of information designed to facilitate the sharing of information with interested parties regarding adverse actions taken against providers. Shared information in this regard will be beneficial to law enforcement, and others as well as those agencies at the federal, state, and local level who regulate the provider community. Guidelines will be implemented to ensure that timely, accurate information is collected by the adverse action data bank and that authorized entities may quickly and easily obtain this information.

FUNDING