Grassley deserves credit for fighting fraud and abuse
David Barmak, Esq.
- Most people would acknowledge the President of the United States as the most powerful person in the world. If those same people were asked to identify who is currently the most powerful person in the healthcare industry, most outside the healthcare industry would not have a ready answer. Consider, however, the suggestion that Sen. Charles Grassley (R-IA), chairman of the United States Senate Judiciary Committee (Committee) holds that title without question. Grassley has a long history of active involvement with our industry; and, in particular, fighting fraud, waste, and abuse. His accomplishments are quite extensive and impressive.
In 1986, Senator Grassley is credited with getting the amendments to the United States False Claims Act passed, empowering whistleblowers to help the government combat fraud. At the time, government and taxpayer-funded programs had ballooned; and, according to Senator Grassley, so had the fraudsters' targets. Taxpayer dollars had become easier and easier to scam, and defrauding the government had skyrocketed. The Department of Justice estimated that fraud constituted from one to ten percent of the entire federal budget. Translating that into dollars meant that in 1985, fraudulent activity was costing taxpayers from $10 to $100 billion every year.
The False Claims Act is considered the most effective tool the government has to fight fraud that is carried out against taxpayers. More than thirty years' worth of recoveries would seem to support that Senator Grassley's efforts were successful. In FY 2015, the federal government recovered more than $3.5 billion under it; and another $4.6 billion in FY 2016. That makes more than $30 billion since January 2009, and more than $52 billion since 1986.
Grassley also led an effort in 2009 to pass the Fraud Enforcement Recovery Act, which bolstered existing tools and resources for government investigators and prosecutors to combat fraud. In 2003, Senator Grassley steered through Congress The Medicare Prescription Drug, Improvement, and Modernization Act, the first-ever comprehensive, voluntary Medicare prescription drug benefit. The public health insurance program for seniors and disabled individuals now has 39 million beneficiaries who are enrolled in Medicare Part D.
Persons in the Durable Medical Equipment segment at the time remember well the provision in the law under Fraud, Waste, and Abuse called "competitive bidding." Since the law was enacted, many DME suppliers have closed their doors, unable to compete with national DME companies that bought regional and local DME companies during fireside sales. Competitive bidding was promulgated under the premise that if there were fewer DME companies, then the DME industry would be easier to police for appropriate compliance; and thereby, increase quality of service and care. Only time will tell if the expected improvement in patient quality of care results from fewer DME companies, as well as if fraud, waste, and abuse has been curtailed in the industry.
In 2016, Grassley spearheaded efforts by the Centers for Medicare & Medicaid Services surveyors to audit skilled nursing facilities for social media compliance, while protecting residents' privacy. He put pressure on the American Health Care Association which, in response to his letter, put out detailed guidance to its members about the social media abuse problem. Grassley also raised social media abuse concerns with the inspector general of the Federal Department of Health and Human Services, which in turn alerted 50 State Medicaid Fraud Control Units to be increasingly aware of the problem and to investigate allegations accordingly. He contacted the Justice Department which expressed concern, noting that protecting seniors from abuse is one of its highest priorities. Facebook, Instagram, and Snapchat also expressed concern in response to letters from him.
In February 2017, Grassley asked the Justice Department to explain the penalties against an Iowa nursing home that was ordered closed and ordered to pay $100,000 to federal taxpayers over “grossly substandard care” that was essentially “without value.” He pointed out that The Abbey of Le Mars was on a federal watch list for two years during the Obama Administration because of concerns about care. In a letter to Attorney General Jeff Sessions, Grassley wrote, “Given that it was a problem-prone facility, the Justice Department, as well as other agencies, need to explain why such outrageous abuse of patients was allowed to occur and what steps will be taken to ensure that this conduct will not go unpunished.” He asked a series of questions regarding when the Department of Justice (DOJ) began looking into the facility:
- Had the DOJ coordinated with the Department of Health and Human Services and the Department of Health and Human Services Office of Inspector General?
- How had the DOJ arrived at the $100,000 False Claims Act settlement, and whether an additional $360,000 in fines will be paid separately?
- How long had the facility provided services deemed essentially “without value”?
- What monitoring is involved when a nursing home is on a federal watch list? and,
- What other steps the previous administration took to “ensure that those engaging in the aforementioned conduct were held to account”?
Grassley was first elected to public office in 1958 and became a senator in 1980. Presidents have come and will continue to go. Meanwhile, he consistently bangs on the drum combating fraud, waste, and abuse, while promoting quality of healthcare.
David Barmak, Esq., is a member of Barmak & Associates LLC, a healthcare law firm in Princeton, New Jersey, and is Chief Executive Officer of Med-Net Concepts, LLC, a healthcare consulting firm. Betty Frandsen, MHA, NHA, RN, is the director of Education for Med-Net Compliance LLC, an affiliate of Med-Net Concepts.