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The Everyone-Does-It Defense

There have been few prosecutions under the fraud and abuse laws. As one attorney put it:

Gaynor says the standard set in the United States v. Greber case is clear: If one purpose of payment is to induce future referrals, the Medicare statute has been violated. But, he adds, it is not followed absolutely. "You've got this case law that says everybody goes to jail and you know that can't be right." The question then becomes which of the transactions is more likely to stimulate the interest of a prosecutor, he says.[40]

For unstated reasons, the Justice Department has not enforced the fraud and abuse law in any meaningful way, leaving physicians and their attorneys in an ethical quandary. If physicians follow the law and the cases interpreting the law, they will be at a tremendous competitive disadvantage. Under the plain language of the law, its interpretation by the courts, and the administrative agency regulations, attorneys are compelled to recommend against many common medical care business practices. If attorneys do so, their clients will seek counsel who are more realistic.

The ethics are further complicated because some of the business practices that are outlawed are beneficial to patients and may even lower Medicare costs. This is not unusual; many business laws are imperfect. The legal test is not that the law be perfect in its application, only that it be rationally related to the ends sought to be achieved. Physicians and their attorneys are drawn into rationalizations that the law could not really mean what it says because that would outlaw many beneficial practices. While it may be ethically defensible to engage in civil disobedience to protest an unjust law, we do not believe that physicians are intentionally violating the law to protest its results.

Recently, there have been efforts to eliminate gross violations, such as any payments tied to referral volume, but these do not reach the structural problems in many deals.[41] Physicians and their attorneys continue to believe that as long as they do not intend to commit fraud, their technical violations are acceptable. Even articles warning of the risk of deals such as joint ventures between hospitals often concentrate on the business risks and do not emphasize the potential for fraud and abuse prosecutions.[42]

[40]Hudson T: Fraud and abuse rules: Enforcement questions persist. Hospitals 1990; 64(5):36.

[41]Hudson T: Fraud and abuse rules: Enforcement questions persist. Hospitals 1990; 64(5):36.

[42]Burke M: Hospital-MD joint ventures move forward despite hurdles. Hospitals 1991; 65(9):22.

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