October 24, 2002
The Honorable Charles E. Grassley
Dear Senator Grassley:
The October 2nd edition of BNA's Healthcare Fraud Report noted your criticism of the Department of Justice and the Centers for Medicare and Medicaid Services for not using the False Claims Act to its fullest potential in healthcare fraud investigations and prosecutions.
While I have no knowledge of the use of the FCA in cases of true fraud, for example, submissions of claims for fictitious patients through a bogus office, our Association has considerable experience with prosecutions of physicians who were simply doing their best to treat patients under a complex and ever-changing Medicare and Medicaid regime.
Based on allegations that the prosecutor does not substantiate - as from a disgruntled ex-spouse, employee, or bounty-seeking qui tam relator - the physician may face years of harassment, ruinous legal fees, and destruction of his practice and his personal life over what amounts to a minor billing dispute. Prosecutors may use methods that amount to extortion or blackmail, use government witnesses who give testimony that is dramatically false, and refuse to cite the actual regulation that a physician has allegedly violated, probably because there isn't one - all with impunity. We have found the Department of Justice to be totally unresponsive to reports of rogue prosecutors.
Does your office have any interest in pursuing the other side of the False Claims Act-its use to ruin physicians or even hound them to suicide, when they are at worst guilty of a regulatory violation, committed without the slightest intention to defraud anyone? As you are aware, Medicare patients are having increasing difficulty in finding a physician who is willing to accept them. There are many reasons to withdraw from the Medicare program, but a very powerful one is the fear of losing the fruits of a lifetime of work and sacrifice, without justification. Many physicians have lost faith in the legal system and believe that if they are prosecuted, there is little hope that justice will be done.
Prosecutors boast that no practice is too small to escape their scrutiny. In fact, it may be more remunerative for the Department of Justice to attack the small practitioner because he is often unable to afford adequate legal assistance.
We would be happy to provide details; many are already posted under "prosecutions" at www.aapsonline.org.
We will let our members know of your response, so that they may make a more intelligent decision about whether to continue participation in federal medical assistance programs.
Thank you for your consideration. Sincerely yours,
Jane M. Orient, M.D.