THE CLINTON ADMIN. USED THE MEDICARE REGULATIONS TO GO AFTER THOSE OPPOSED TO HILLARYCARE
In the early 1990s, Rick Scott was one of the most vocal critics of Hillary Clinton's health care plan (a.k.a. HillaryCare). Under Bill Clinton's administration a myriad of ambiguous and complex Medicare regulations were created. Full compliance was not feasible. It was more a game of gotcha and revenue than of law enforcement. The government was criticized in the media for classifying simple mistakes as “fraud.” Dozens of prestigious health care institutions paid millions in fines, including Yale Hospital, Duke University Hospital, Harvard University Hospitals, University of Chicago Hospitals, Johns Hopkins, and industry giants Tenet and Columbia/HCA.
In 1998, then-congressman Bill McCollum defended health care providers like Columbia/HCA against the Clinton Administration’s witch hunt:
Here is a re-print of McCollum's 1998 speech:
-------- HON. BILL MCCOLLUM in the House of Representatives
THURSDAY, MARCH 19, 1998 Congressional Records [Page: E434]
- Mr. McCOLLUM. Mr. Speaker, today I join my colleague from Massachusetts, Mr. Delahunt, in introducing the Health Care Claims Guidance Act . This legislation recognizes that, in our zeal to crack down on health care fraud and abuse, we must be careful not to throw our nets so wide that we ensnare honest providers who are making inadvertent billing mistakes. Ensuring that health care providers comply with all federal, state and local laws and regulations is, and always has been, a priority. At the same time, we should not carelessly paint all health care billing mistakes as billing fraud.
- Many hospitals and other health care providers have received demand letters from the offices of U.S. Attorneys asserting that the provider may be guilty of fraudulent billing and threatening the imposition of treble damages plus $5,000 to $10,000 per claim under the False Claims Act unless a quick settlement is reached. In some cases, demand letters have been sent based on alleged overbilling of less than $100. In one case, a demand letter was sent to a hospital for overbilling in the amount of $8.79 on a single claim over a one year period.
- The most innocent of providers often feel forced to settle these claims instead of facing the prospect of an automatic $10,000 fine for a small disputed amount. Even if a provider could clearly prove their innocence and show that these claims resulted from innocent clerical error, they would be likely to settle the case rather than incur large legal costs. The numbers speak for themselves. In fiscal year 1997, there were 4,010 federal civil health care fraud matters pending but only 89 cases resulted in the actual filing of a civil complaint. The large majority were settled.
- Considering that providers are faced with a federal health care payment system of more than 1,700 pages of law and over 1,200 pages of regulations interpreting those laws, as well as thousands of additional pages of instruction, it is inevitable that human error will occur and that erroneous claims will be submitted. Every day, providers submit over 200,000 federal health care claims , adding up to 73 million claims per year. Considering the sheer volume and complexity of such claims , it is unreasonable to view every single billing mistake as fraud that merits the threat of the severest civil sanctions.
- Mr. Speaker, the Health Care Claims Guidance Act provides a clear and simple way of distinguishing between those claims that are fraudulent and those claims that result from human error. The bill establishes a deminimus threshold requiring that the amount of damages in dispute be a material amount for an action brought under the False Claims Act . The deminimus threshold would be established by the Secretary of Health and Human Services. This requirement would protect against the use of the False Claims Act for small, erroneous billings which likely result from human error.
- In addition, the legislation would provide safe harbors for reliance on government advice or written policies. There is no better example of fundamental unfairness than when a private party relies on government advice but is then threatened with court action for having done so. The Health Care Claims Guidance Act would also provide safe harbors for claims that are in substantial compliance with model compliance plans. Affirmative defenses would be established for these situations.
- It is clearly in the public's interest for parties to work together to prevent health care billing mistakes from occurring. Providers should actively seek out trouble spots and quickly flag problems to government agencies. At the same time, in order to further the goal of compliance, federal agencies which administer federal health care programs should be encouraged to assist providers in the early detection and correction of practices which may result in a disputed claim. By encouraging such self-policing, providers and government agencies will be able to work together to root out problems quickly.
- It is clear that there are organizations and individuals engaging in efforts to defraud the federal government and we must use all of the tools at our disposal to pursue and severely punish such willful violators. In fact, during consideration of the Health Insurance Portability and Accountability Act during the last Congress, the Crime Subcommittee worked on provisions to strengthen criminal health care fraud statutes. At the same time, there are honest providers doing their best to comply with complex health care rules and regulations who will make honest mistakes. The Health Care Claims Guidance Act provides clear guidance to ensure that the false claims of fraudulent actors are distinguished from the honest mistakes of innocent providers. I urge all my colleagues to support the Health Care Claims Guidance Act .
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