The Everyone-Does-It Defense
Despite the decision in Greber and clear wording of the law, medical care attorneys and their clients continued to structure deals in violation of the laws. As one attorney put it, “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. [Hudson T. Fraud and abuse rules: enforcement questions persist. Hospitals. 1990;64:36.]
As late as 1993, the authors of this book wrote:
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.
Since that was written, the DOJ and the OIG have “discovered” fraud and abuse prosecutions and have sanctioned many medical care providers for their illegal deals. In the latest enforcement actions, the government has started to indict the attorneys who advised on abusive deals.