9-44.100
Health Care FraudGenerally
Health care fraud is a growing problem across the United
States. In response to this growing problem, in 1993, the Attorney
General made health care fraud one of the Department's top
priorities. Through increased resources, focused investigative
strategies and better coordination among law enforcement, the
Department continues to upgrade its efforts in combatting the full
array of fraud perpetrated by health care providers.
Health care fraud can be prosecuted both civilly and criminally
under a variety of statutes and regulations that are discussed in
several different chapters of the United States Attorneys' Manual
including 9-42.000 (Fraud Against
the Government), 9-43.000 (Mail
and Wire Fraud), and 9-46.000 (Program Fraud and Bribery).
See the Criminal Resource Manual at
976 for additional background on the problem of health care
fraud.
9-44.150
Fraud and Abuse Control Program and Joint Guidelines Mandated by the
Health Insurance Portability and Accountability Act of 1996
The Health Insurance Portability and Accountability Act, signed
by the President on August 21, 1996, established and funds a Health
Care Fraud and Abuse Program to combat fraud and abuse committed
against all health plans, both public and private. See the
Criminal Resource Manual at 978 for the
text of the Program.
In addition, joint Guidelines issued by the Attorney General
and the Secretary of the Department of Health and Human Services to
carry out the Fraud and Abuse Program stress the importance of
communication and shared information between private and public
plans and the federal, state and local governments. The Guidelines
also note the importance of parallel or joint proceedings to help
maximize the government's recovery while minimizing duplication of
effort. See the Criminal Resource Manual at
978 for the text of the guidelines.
9-44.160
Guidelines for Multidistrict Health Care Fraud Initiatives
The following guidelines for multidistrict health care fraud
initiatives were issued by the Attorney General on April 2,
1997:
- COORDINATION OF ACTIVITIES
.
- The United States Attorneys' Offices, the Criminal Division and
the Civil Division should work as partners to ensure a vigorous
national health care fraud enforcement program. As the Health Care
Fraud and Abuse Guidelines promulgated by the Attorney General and
the Secretary of the Department of Health and Human Services
recognized, consistent with the Department's regulations, the
United States Attorneys' Offices remain the focal point for the
coordination of criminal and civil health care fraud sanctions
within a district. See the Criminal
Resource Manual at 978 (Health Care Fraud and Abuse
Guidelines).
- The purpose of this memorandum is to provide guidance to the
United States Attorneys, the Criminal Division, and the Civil
Division, in carrying out their responsibilities in the
investigation and prosecution of multidistrict health care fraud
matters in a manner that
- encourages initiative on the part of individual United
States Attorneys and draws upon their litigation expertise and
knowledge of the local community; and
- utilizes the expertise
and institutional and program knowledge of the Criminal and Civil
Divisions, in particular the Fraud Section and Asset Forfeiture and
Money Laundering Section of the Criminal Division, and the
Commercial Litigation Branch of the Civil Division.
- Cooperation and communication among components will enhance
health care fraud enforcement. Before the Civil Division or
Criminal Division acts on any health care fraud matter within a
particular district, or a United States Attorney's Office acts on
a health care fraud matter in a district other than its own, it
shall advise in advance the health care fraud coordinator in the
United States Attorney's Office of that district. Similarly, United
States Attorneys' Offices shall advise the Criminal Division's
Fraud Section and the Civil Division's Commercial Litigation Branch
of matters which appear likely to result in inquiries to the
Criminal or Civil Divisions.
- IDENTIFYING MULTIPLE INVESTIGATIONS
.
- Each investigative agency will be responsible for ascertaining
whether a subject of an investigation is already under
investigation by any other agency and/or in multiple jurisdictions.
Investigative and prosecutive agencies must be alert to and
appropriately communicate fraud schemes and health care enforcement
policy issues that potentially require a nationwide strategy.
- INVESTIGATIONS IN MULTIPLE DISTRICTS
.
- When a federal or state investigative agency, a United States
Attorney's Office or the Department of Justice ascertains that a
subject is under investigation in multiple jurisdictions (whether
by one or multiple agencies), they should convey that information
to the relevant investigative agencies and the Criminal and/or
Civil Divisions of the Department of Justice and the appropriate
United States Attorneys' Offices so that, where appropriate, they
can develop together a nationwide strategy to most effectively
coordinate the multiple efforts and efficiently use resources.
Where the subject operates only in one state or in one metropolitan
area, communication to the relevant United States Attorneys is
sufficient. In other instances of multiple investigations of the
same subject, the U.S. Attorney's Office must notify, as early as
possible, the Criminal and/or Civil Divisions and relevant
investigative agencies by letter or electronic mail of the multiple
investigations and the following information:
- the identity of the subjects of the investigation;
- a summary of the factual allegations to be investigated;
and
- a preliminary assessment of the statutes which may have been
violated.
- NATIONAL INITIATIVES
.
- Where an investigative agency, a United States Attorney's
Office, the Civil Division or Criminal Division of the Department
of Justice seeks to develop a health care fraud national initiative
which would target a common fraudulent scheme perpetrated in a like
manner by multiple similarly situated subjects (i.e., particular
health care providers) in multiple districts, then they should
convey that information to the relevant investigative agencies, the
Criminal Division and Civil Division and the appropriate United
States Attorneys' Offices so that together they can develop a
nationwide strategy to most effectively coordinate the multiple
efforts and efficiently use resources. Recent examples of health
care fraud national initiatives which would have fallen into this
category include: Labscam; hospital laboratory project initiated in
Ohio; and the lymphedema pump initiative.
- RELEVANT FACTORS FOR CONSIDERATION IN DETERMINING
PROTOCOL FOR SPECIFIC INVESTIGATIONS/INITIATIVES
.
- Within one week of receiving notice that a matter constitutes
a multidistrict investigation or a national initiative as set forth
respectively in III or IV above, the relevant components and
investigative agencies will discuss and determine together the
appropriate method of pursuing the multidistrict investigation or
national initiative including the extent and manner of the
coordinating role, if needed, of the Civil Division and/or Criminal
Division. Until coordination is determined, the relevant United
States Attorneys' Offices, investigative agencies and, where
appropriate, the Criminal and/or Civil Division should pursue the
investigation in a manner which will not interfere with or
compromise investigations in other districts. Relevant factors for
this discussion may include but not necessarily be limited to the
following factors:
- nature of the scheme and investigation and its
relation to the district;
- the status of any criminal investigation;
- traditional False Claims Act venue factors, including where
any qui tam cases may have been filed;
- resource and expertise of relevant districts;
- need for consistency and coordination.
- COORDINATION OF MULTIDISTRICT INVESTIGATION/NATIONAL
INITIATIVE
.
- In devising the appropriate method of coordinating the
multidistrict investigation or national initiative, the relevant
components will ensure that the coordinating office or offices
(whether a U.S. Attorney's Office, Civil Division or Criminal
Division) perform the following responsibilities and communicate
with other affected offices:
Notification of and coordination with other offices of
the Department of Justice as appropriate, such as the Associate
Attorney General's office, the Deputy Attorney General's office and
other offices, Boards and Divisions, as appropriate.
- Notification of and coordination with the appropriate
headquarters officials of the affected federal agencies to ensure
that agency policy concerns are respected.
- Providing assistance in securing and coordinating sufficient
investigative and audit resources to appropriately handle the
matter.
- Calling for and organizing strategy and training sessions or
meetings that promote the efficient handling of the matter.
- Providing assistance in the coordination of discovery requests
and responses to discovery affecting multi-district and/or
nationwide cases.
- Assisting in the establishment of any necessary data bases and
ensuring that compatible forms of Automated Litigation Support, to
the extent appropriate, are available.
- Ensuring consistency to the extent possible in making
decisions about initiating actions, which legal theories are to be
applied, evaluation of proposed settlements and trial
strategies.
- GLOBAL SETTLEMENT
- In the event that a federal multidistrict investigation is
leading to a global settlement, all relevant parties, including
appropriate state and local agencies should be informed of
negotiations at the earliest possible date so that the appropriate
entities, such as National Association of Medicaid Fraud Control
Units, can designate a team of representatives to negotiate on
their behalf. Similarly, in the event that a state-led
multidistrict investigation results in a global settlement, similar
early communication should occur. All global health care fraud
settlement must be conducted and completed in accordance with
existing Department of Justice procedures concerning such
settlements.
- EVALUATION OF THESE GUIDELINES
.
- These guidelines will be revisited by April 1998.
Approved
ATTORNEY GENERAL JANET RENO
[Original signed by Janet Reno]
DATE: 4/2/97
9-44.200
Overview of Authorized Investigative DemandsAuthority
On August 21, 1996, the President signed into law the Health
Insurance Portability & Accountability Act, P.L. 104-191. Section
248 of P.L. 104-191 adds a new statute, 18 U.S.C. § 3486.
This provision empowers the Attorney General, or the Attorney
General's designee, to issue investigative demands to obtain
records for investigations relating to Federal criminal health care
fraud offenses; these records are not subject to the constraints
applicable to grand jury matters set forth in Fed. R. Crim. P.
6(e). The new statute also provides for judicial enforcement of
these investigative demands through contempt actions and immunizes
persons complying in good faith with such demands from civil
liability for disclosure of information. Investigative demands
differ from inspector general subpoenas in that the scope of the
latter are limited to the statutory authority of the specific
inspector general and civil investigations, whereas investigative
demands can be directed more broadly to various public and private
victims and must involve criminal investigations.
9-44.201
Overview of Authorized Investigative DemandsDelegation
The Attorney General's authority to issue investigative demands
pursuant to 18 U.S.C. § 3486 has been delegated, with
authority to redelegate, to the following officials:
- Each United States Attorney;
- The Assistant Attorney General for the Criminal
Division.
9-44.202
Overview of Authorized Investigative DemandsLimitations
Authorized investigative demands can be an important source of
evidence. Issuance of these demands and access to records obtained
pursuant to them, however, must be in accord with a number of legal
requirements. This section presents an overview of several specific
statutory requirements set forth in 18 U.S.C. § 3486; the
statutory language should also be reviewed prior to issuance of an
investigative demand to ensure compliance with the more routine
provisions.
- Subject Matter Limitation
- Pursuant to 18 U.S.C. § 3486, the use of authorized
investigative demands is limited to investigations relating to
"Federal health care offenses." The term "Federal health care
offense" is defined in 18 U.S.C. § 24(a) to mean a
violation of, or a criminal conspiracy to violate, 18 U.S.C.
§§ 669, 1035, 1347, or 1518; and 18 U.S.C.
§§ 287, 371, 664, 666, 1001, 1027, 1341, 1343, or
1954 if the violation or conspiracy relates to a health care
benefit program. The term "health care benefit program" is defined
in 18 U.S.C. § 24(b) as any public or private plan or
contract, affecting commerce, under which any medical benefit,
item, or service is provided to any individual, and includes any
individual or entity who is providing a medical benefit, item, or
service for which payment may be made under the plan or
contract.
- Geographic Limitation on Document Return
- Pursuant to 18 U.S.C. § 3486, the site designated for
the production of the records requested pursuant to an authorized
investigative demand must be not more than 500 miles from the place
where the authorized investigative demand was served.
- Limitation on Return Date
- Pursuant to 18 U.S.C. § 3486, an authorized
investigative demand is required to prescribe a return date that
allows a reasonable period of time within which the objects can be
assembled and made available. Unlike a forthwith subpoena, an
investigative demand may not require the immediate production of
records at the time it is served.
- Authority to Compel Testimony Limited
- Authorized investigative demands may be used to require the
production of records, including books, papers, documents,
electronic media, or other objects or tangible things. Pursuant to
18 U.S.C. § 3486, the authority to issue investigative
demands to obtain testimony is limited to requiring a custodian of
records to give testimony concerning the production and
authentication of such records.
- Restrictions on Individual Health Care Information
- Pursuant to 18 U.S.C. § 3486, health information
about an individual acquired through an authorized investigative
demand may not be used in, or disclosed to any person for use in,
any administrative, civil, or criminal action or investigation
directed against that individual unless the action or
investigation arises out of and is directly related to receipt of
health care, payment for health care, or action involving a
fraudulent claim related to health. Any other use requires a court
order upon a showing of good cause. In assessing good cause, the
court shall weigh the public interest and the need for disclosure
against the injury to the patient, to the physician-patient
relationship, and to the treatment services. In granting such an
order, the court shall impose appropriate safeguards against
unauthorized disclosure.
- Limitation on Use After Indictment
- After an indictment has been issued, authorized investigative
demands may continue to be used in furtherance of an ongoing
investigation, provided they are not directed to a defendant.
Cf. United States v. Phibbs, 999 F.2d 1053, 1077 (6th
Cir. 1993), cert. denied, 510 U.S. 119 (1994); United
States v. Harrington, 761 F.2d 1482, 1485 (11th Cir. 1985)
(administrative subpoenas issued by Drug Enforcement Administration
between indictment and trial held legal when issued to third
parties during continuing investigation).
9-44.203
Factors to Consider Prior to Issuance of Authorized Investigative
Demands
The following factors should be considered prior to the
issuance of an authorized investigative demand:
- Whether the background of the criminal investigation for
which the records are being subpoenaed relates to any act or
activity involving a Federal health care offense (as defined in 18
U.S.C. § 24(a)) as required by 18 U.S.C.
§ 3486.
- Whether appropriate consideration has been given to the manner
in which to enforce the investigative demand in the event of
noncompliance.
9-44.204
Authorized Investigative DemandsRecord Keeping Procedures
In light of the fact that the authorized investigative demand
is a new enforcement tool, it is anticipated that its use will be
closely tracked. In order to enable the Department to reply quickly
to inquiries concerning the use of investigative demands, each
United States Attorney's office and the Fraud Section of the
Criminal Division should maintain records on the following:
- the number of authorized investigative demands issued and
the dates of service;
- office procedures for the issuance of, and compliance with,
authorized investigative demands;
- whether any health information obtained pursuant to authorized
investigative demands was used in, or disclosed in, any
administrative, civil or criminal action or investigation directed
against the individual who is the subject of the information;
- whether the investigative demand required testimony from a
custodian of records;
- whether documents were returned pursuant to the authorized
investigative demand without judicial enforcement;
- whether judicial enforcement of the investigative demand was
pursued and the result of that litigation.
The specific manner in which this information is maintained is
left to the discretion of each United States Attorney's office and
the Fraud Section of the Criminal Division. The challenge for each
office is to develop an accurate record keeping system without
creating extensive administrative obstacles which render the
authorized investigative demand too cumbersome to use.
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