A Patient-Centered Approach to Health Care Fraud Recovery

By Krause, Joan H. | Journal of Criminal Law and Criminology, Winter 2006 | Go to article overview

A Patient-Centered Approach to Health Care Fraud Recovery


Krause, Joan H., Journal of Criminal Law and Criminology


This Article begins with a simple premise: Health care fraud hurts patients. From that premise flows a simple corollary: efforts to combat health care fraud should, if possible, remedy this patient harm. Despite its intuitive appeal, this syllogism does not represent current practice. Funds recovered through health care fraud enforcement are distributed to the Medicare Trust Fund, to the federal agencies that investigate and prosecute health care fraud, and to private parties who initiate suits on the government's behalf under the civil False Claims Act (1)--but rarely to patients who may have been harmed by the conduct. While focusing enforcement efforts on returning funds to the Federal Treasury clearly helps to assure that the federal health care programs (2) remain solvent and continue to provide care to beneficiaries in the aggregate, it offers little solace to injured individuals.

This approach stands in marked contrast to efforts to make the United States health care system more "patient-centered." In 2001, the Institute of Medicine's Committee on Quality of Health Care in America identified "patient-centeredness" as one of the six health care aims for the next century, "focus[ing] on the patient's experience of illness and health care and on the systems that work or fail to work to meet individual patients' needs." (3) While advocates initially focused their efforts on clinical practice--emphasizing respect for patients, the provision of honest and complete information, physical comfort, and emotional support for patients and their families (4)--these concepts have grown to encompass systemic structural concerns as well. A patient-centered approach to access to health care makes "serving the practical health care needs of patients (1) the focal point of the health care system, (2) the paramount responsibility of health professionals, and (3) the primary role of private and public-financing [of] health care." (5) A health care fraud enforcement system that assures large monetary recoveries for the Federal fisc but makes no attempt to compensate injured beneficiaries does not achieve these goals. In short, current health care fraud recoveries are not patient-centered.

The reasons for this failure are complex, and derive both from the factual context in which health care fraud occurs and from the traditional white collar crime enforcement framework. In large part, health care fraud recovery is not patient-centered because patients are not viewed as the victims of the fraud; that distinction instead belongs to the federal government, the ultimate payer under the federal health care programs. Consistent with that view, the federal statutes most commonly invoked in fraud cases channel recoveries to the federal coffers rather than directing compensation to injured individuals. Indeed, to the extent the government's primary interest in prosecuting health care fraud derives from its role as a defrauded payer, rather than as the more general protector of its citizenry, individualized compensation would appear to be unnecessary. (6) This focus on financial harm to the government is reinforced by situating health care fraud within the context of white collar crime, an area of law that focuses almost exclusively on economic harm. (7) In short, the recognition that health care fraud harms individual patients in ways that merit compensation--particularly if such harm is non-financial in nature--does not fit into the dominant conceptual model of health care fraud.

Part I of this Article explores the varied ways in which patients are harmed by fraudulent health care activities. Part II analyzes barriers to patient compensation under current law, addressing not only limitations on the disposition of recovered funds but also the conceptual difficulties posed by the white collar crime framework. Part III discusses recent developments at the state and federal levels, and explores compensation mechanisms common in consumer protection cases to determine whether they could be imported into the health care fraud context. …

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