Insurers should consider many factors before taking legal action to get recompense in fraud cases, attorney Frank S. Goldstein advised in a Claims Journal article, including corporate priorities and projected expenses for each case.
Payers should decide if they want to stop fraud and abuse-related financial "bleeding" attributable to individual providers, make a proactive anti-fraud statement to would-be criminals, recover lost dollars or a combination of these goals, Goldstein says.
Payers should also analyze the costs and potential benefits of devoting resources to court cases and factor in the costs of losing. Legal teams should evaluate evidence and all investigative steps, since proof that appears airtight to an insurer may be found lacking by law-enforcement. Overall, the quality and weight of the evidence should guide how payers proceed, Goldstein wrote.
This echoes what Boston FBI supervisory special agent Christine O'Neill told FierceHealthPayer: Anti-Fraud in an exclusive interview. "Cases that are most successfully prosecuted federally involve blatant fraud: Billing for services not rendered [or] billing by individuals who aren't certified to provide those services," O'Neill said. "[If] the sole basis of a case is interpretation of medical necessity, then that's not as easy of a sell to a U.S. Attorney's Office."
Another factor that may influence decisions to litigate fraud cases is the outcome of the U.S. Sentencing Commission's review of white-collar crime sentencing guidelines. The commission expressed interest in making punishments for certain financial crimes more lenient, according to a blog post in the Pittsburg Post-Gazette. Though the sentencing guidelines are advisory rather than mandatory, judges rely on them, the post noted.
Critics say the guidelines overemphasize financial loss as opposed to defendant culpability. The American Bar Association proposed giving judges more sentencing leeway to consider criminal motives, fraud scheme duration and sophistication and whether the defendant profited from the scam, the post added.