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The Politics of Prosecution

The decision to prosecute medical businesses under the fraud and abuse law has always been a political decision. The law has been clear since 1977; the only reason that it has been questioned is that it was not enforced. The delays and acrimony over the promulgation of the safe harbor regulations were because of the large number of noncomplying physicians and medical businesses, not because of the complexity of the regulations. The final regulations themselves are quite short and simple. While the OIG has been silent on its reluctance to recommend prosecution in the past, even this reluctance may have been understated.

The OIG has allowed many physicians and medical businesses to enter into settlements that are confidential and thus make it difficult for physicians and their attorneys to estimate the true risk of violating the laws and regulations. These settlements were agreed to before the final safe harbor regulations were promulgated. It is likely that most of the settlements were made for business practices approved by attorneys.

It is reasonable to assume that the OIG's strict interpretation of allowable practices, as reflected in the final safe harbor regulations, indicates a more aggressive posture toward prosecuting physicians and medical business. Other political signs point to increased prosecution. Congress and the administration have posed revised Medicare/Medicaid reimbursement guidelines that will reduce the overall payments to physicians. Increased fraud and abuse prosecutions are a convenient way to deflect criticism from medical groups seeking to ensure adequate reimbursement levels.

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