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The General Accounting Office (GAO) recently concluded that the U.S. Department of Justice (DOJ) now is utilizing the False Claims Act (FCA) more appropriately. But several veteran health care attorneys say the report mainly takes a look back at two initiatives that have largely run their course — prospective payment system transfer and pneumonia upcoding. "I am not sure that it matters," asserts former DOJ attorney Stuart Gerson. "Those programs are not affecting all that many people at this point."
According to Gerson, an attorney with Epstein Becker in Washington, DC, the greater area of interest and possible reform is with the Health and Human Services Inspector General rather than DOJ. "The greater focus of concern on the part of people who are negotiating with the government is with the increasing demand from corporate integrity agreements," he explains.
The GAO says the DOJ now is implementing the pneumonia upcoding and prospective payment transfer system initiatives, both of which prompted industry concern, in a way that’s consistent with an internal DOJ guidance designed to reign in overzealous prosecutors.
That guidance, commonly referred to as the "Holder Memo," was issued nearly three years ago by Deputy Attorney General Eric Holder in part to avert legislation from Congress that would have reigned in use of the FCA. The guidance instructs DOJ attorneys and U.S. Attorneys to establish that claimants knowingly submitted false claims before they allege violations of the act.
The GAO says that DOJ’s review of each U.S. Attorney’s Office’s compliance with the guidance now appears to be "an integral part" of the periodic evaluations of all those offices.
DOJ’s annual requirement that all offices involved in civil health care fraud control certify their compliance with the guidance has promoted conformity, and its periodic evaluations of U.S. Attorney’s Offices now incorporate "a more substantive examination of compliance with the guidance," the GAO adds.
This is GAO’s fourth assessment of DOJ’s compliance with that guidance. Each report has been progressively more favorable in assessing the department’s compliance.