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White-Collar Crime | Monday, July 7, 2014 | S3

the health care arena are due in no small part indeed, in nearly every press release are multiple levels of review by supervisory and other violations into fraud prosecutions;

to the “heAT” program. Created by president announcing a strike force case, the DoJ personnel up to the U.S. attorney herself. in and (2) overuse and misuse of the concept
Barack obama in 2009, heAT is short for the includes an update on how many belt New York, where the eastern and Southern of “conscious avoidance.”
health Care fraud prevention and Action notches (aka indictments) the strike force Districts are heavily staffed with experienced
Team. As Lanny Breuer, the former head of has obtained—in early June the number was senior prosecutors, such supervision is cru- Criminalizing Regulatory Violations
the Department of Justice’s Criminal Division, approaching 1,900 defendants indicted over cial in ensuring that “aggressive prosecution”
has explained, the centerpiece of heAT is both the past seven years.11 in January, the DoJ of crime is tempered with common sense and The notion that medicare embodies one of
the expansion of the medicare fraud Strike issued a press release boasting that in 2013 discretion. The strike force prosecutors, on the most arcane and impenetrable panoplies
force, and the deterrence of health care fraud the strike force had obtained 280 convictions the other hand, do not work for the U.S. of statutes, regulations, guidance and deci-
through more strike force indictments and for health care fraud, and that the average attorney, and while there is certainly a nod sions ever designed is not open to serious

longer sentences for providers.
prison sentence was 52 months and rising.12
to oversight from both the DoJ in washington, dispute. As one court has put it:
The strike force sounds like, and indeed The strike force is also fond of releasing D.C. and the local U.S. attorney’s office when There can be no doubt but that the stat-
is something of a prosecution SwAT team. impressive sounding, but misleading dollar the strike force is in town, it is no substitute utes and provisions in question, involving
They descend on a city or geographic area amounts. for example, in may of this year for the intense review and supervision of a the financing of medicare and medicaid,
exhibiting “high levels of medicare billing” the strike force announced a takedown that line assistant’s work that is part of any well are among the most completely impen-
and, based on statistical analysis, the strike involved “$260 million in false Billings.” But run federal prosecutor’s office.
etrable texts within human experience.
force targets a large group of providers. one the amount of the “billings” is meaningless. in any event, the problem with the growing indeed, one approaches them at the
objective of the strike force is the dramatic medicare pays fixed fees for nearly every ser- commitment to using lengthy jail sentences level of specificity herein demanded
announcement of massive, usually nation- vice, regardless of how much is billed. So as a first line of defense in the battle against with dread, for not only are they dense

wide, “takedowns.” Strike force takedowns doctors might bill $10,000 for a neurosurgical health care fraud is not just that it doesn’t reading of the most tortuous kind, but
typically require the coordination of dozens procedure and medicare will almost never work (long jail sentences have never been Congress also revisits the area frequently,
of operations in several different states. This pay over $1,000. The strike force does not an effective deterrent to white-collar crime— generously cutting and pruning in the
concerted action is undertaken purely for disclose actual medicare payments—the real witness the recent growth in ponzi schemes process and making any solid grasp of
its public relations value: The pursuit, sadly, dollars the fraudsters allegedly put in their even as more and more schemers are sent the matters addressed merely a passing
is of headlines and not justice. By eschew- pockets, but it is a safe bet that in every case to prison for decades), but also that it often phase.13
ing a case-by-case arrest and arraignment, it is a small fraction of the “billings.”
results in providers going to jail for doing Consequently, the notion that medicare
where the press release will merely tout the Aside from the obviously powerful incen- things that are either not actually criminal, regulatory noncompliance will result in crimi-

arrest of one or more providers, and describe tive the heAT/strike force paradigm creates or, if they are illegal, they do not constitute nal penalties should be of great concern. how
unremarkable fraud amounts, the strike force to overcriminalize alleged health care miscon- fraud, but amount only to some lesser offense. can it be a crime to disobey “the most com-
strategy enables them to issue press releases duct (when your only tool is a hammer, every- This article will address the two categories pletely impenetrable texts within human expe-
reporting that “90 individuals” were arrested thing becomes a nail), another problem with of cases that demonstrate the most troubling rience,” which even federal judges struggle
and charged, and that hundreds of million dol- the strike force model is the resulting lack of manifestations of DoJ’s increasing reliance to understand?
lars of fraud are alleged.9 The ensuing media oversight on the ground. when the local U.S. on creative and expansive interpretations health care providers have often com-
coverage is predictably dramatic.10
attorney’s office investigates a case, there
of health care fraud: (1) turning regulatory
plained that the health care » Page S10

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