Utilizing a provision of the Affordable Care Act, the U.S. Department of Justice and Department of Health and Human Services announced the formation of a new public-private partnership between the federal government, state officials, several private health insurance companies, and other anti-fraud organizations. While touted as a new idea, Department of Justice (DOJ) has been operating for over a decade under an information sharing arrangement with the National Healthcare Anti-Fraud Association (NHCAA), largely comprised of private insurers’ Special Investigation Units (SIUs). While the new partnership contains promise, the existing NHCAA information sharing arrangement may be a harbinger of issues that have plagued information sharing efforts in the past.
Building on current efforts, the new national partnership is intended to facilitate the sharing of information to effectively identify health care fraud schemes. Historically, DOJ criminal units have refused to share detailed information about their inquiries, citing grand jury secrecy Rule 6(e) which makes it a felony to divulge information about on-going criminal investigations. If DOJ and the Department of Health and Human Services (HHS) want the concept to succeed, they need to use the information being provided by SIUs in real time to evaluate known community schemes. In so doing, DOJ and HHS can attempt to correlate frauds that cut across public and private plans, like the numerous Medicare fee-for-service schemes that cross over to Advantage plans. What DOJ and HHS must not do is allow suspect information from its private partners to be used to threaten or extort legitimate providers, harming needy beneficiaries.
John St. Leger
The DOJ and HHS assert that the partnership aims to identify facially fraudulent claims. For example, claims for the same procedure allegedly provided to a patient on the same day, but in different cities. As a long term goal, the partnership also seeks to apply advanced analytical techniques to industry data in order to detect fraud before claims are paid. This concept requires that community policing techniques be used with medical knowledge. Not only will this improve the partnership’s efficiency, but it will reduce the risk of targeting legitimate providers.
Hesitancies of CMS
Historically, HHS has been incapable of stopping on-going schemes due to CMS’s hesitancies to stop payments. For the new program to work, CMS has to understand program vulnerabilities and take immediate action. Real criminals change their billing patterns in an instant upon perceived detection, CMS takes years to change its instructions to Medicare Administrative Contractors. Also, HHS must guard against targeting legitimate providers based on the incentives of payers to restrict care. To achieve its goals, HHS must use medical professionals who know the current schemes and can interpret the trends in real-time.
To protect providers and make efficient use of the new partnership, HHS and DOJ need to deploy a structure with a clear lines of authority to people with sufficient medical and law enforcement knowledge to make quick decisions. Achieving consensus with all enforcement community stakeholders in real-time is impossible. The government can only use consensus building to set the initial system in place. If they attempt to reach consensus on each issue, we will all be discussing the potential for the partnership 10 years from now. While many have placed their hopes on CMS Program Integrity Command Center to provide the necessary structure, CMS needs a heavy dose of law enforcement. CMS has been extraordinary at identifying irregularities in the billing patterns of legitimate providers and terrible a spotting real criminals who spend their waking hours trying to perfect their fraudulent claim forms.
While providers have the ability to assist CMS in developing their predictive analytics, the state-of-the-art technology can only work if doctors and medical professionals push HHS to truly understand what is happening in the communities. Starting in September 2012, the Executive Board, Data Analysis and Review Committee, and Information Sharing Committee of the new partnership will convene with the hope of advancing our health care system and saving taxpayer money. Hopefully, the committees will reach out to those with the most knowledge to assist in their efforts.
Kirk Ogrosky, JD, can be reached Arnold & Porter LLP, 555 12th St. NW, Washington, DC 20004-1206; 202-942-5330; email: Kirk.Ogrosky@aporter.com.
John St. Leger, JD, can be reached at Arnold & Porter LLP, 555 12th St. NW, Washington, DC 20004-1206; 202-942-6842; email: John.St.Leger@aporter.com.