The Civil Division of the Justice Department has filed a response to one of the first lawsuits against the health care law enacted in March, giving a hint as to the federal government’s strategy for defending the law in court.
Justice Department lawyers argue that the Thomas More Law Center in Michigan has no standing to challenge the law because the provision at issue — the individual mandate — does not take effect until 2014. The conservative-leaning public interest group is joined in the lawsuit by several individuals seeking a preliminary injunction to stop the law from taking effect.
“They bring this suit four years before the provision they challenge takes effect, demonstrate no current injury, and merely speculate whether the law will harm them once it is in force,” DOJ lawyers wrote in their response filed in U.S. District Court in Michigan.
Because the health care industry operates in interstate commerce, “there is a long-recognized federal interest in its regulation,” DOJ argued.
The plaintiffs claims that the minimum coverage provision falls outside of Congress’ authority to regulate interstate commerce and its power to tax and spend for the general welfare “are flatly wrong,” the brief argued.
Efforts to block the individual mandate provision of the health care overhaul law are underway in 33 states, according to The Washington Post. On Friday, seven additional states plan to join a federal lawsuit that was filed by 13 states in Florida. The Attorney General of Virginia has also filed his own lawsuit against the law.
Justice Department spokesman Charles Miller said the government would “vigorously defend” the health care law after it was signed by Obama in March.
Trial attorneys Ethan P. Davis and Jesse Z. Grauman filed the Justice Department’s response, which also lists Sheila Lieber, Deputy Director of the Federal Programs Branch in the Civil Division; U.S. Attorney for the Eastern District of Michigan Barbara L. McQuade; Civil Division Deputy Assistant Attorney General Ian Heath Gershengorn; and Assistant Attorney General for the Civil Division Tony West.
DOJ’s response to the lawsuit is embedded below.
A provision in the newly passed health care law could give the Justice Department an extra tool in investigations of state-run institutions and prisons — including in its high-profile probe of an obstreperous Arizona sheriff under scrutiny for his law enforcement record.
One of the federal probes targeting Maricopa County Sheriff Joe Arpaio involves his treatment of jail inmates, including those rounded up in illegal immigration sweeps. Last year Arpaio, a vocal opponent of illegal immigration, marched 220 undocumented inmates chain-gang style down a public street in Phoenix in what The Mexican American Legal Defense and Educational Fund called a publicity stunt designed to humiliate them.
The health care law signed by President Barack Obama last month contains a little-noticed provision that allows the Attorney General to expedite subpoenas from any institution that is the subject of a Civil Rights of Institutionalized Persons Act (CRIPA) investigation. That includes the Maricopa County jail run by Arpaio and facilities around the country.
The DOJ’s enhanced subpoena power is aimed at probing conditions at government-run prisons, mental health facilities and nursing homes generally — and not specifically at “Sheriff Joe,” as Arpaio has become known. But Arpaio has charged that the federal investigators have targeted him for his politics, an allegation that has raised the profile of his case. His resistance to federal oversight has also vexed the DOJ.
The sheriff has accused Justice Department lawyers of posing as reporters to gain access to one of his news conferences and been rebuked by the head of the DOJ’s Public Integrity Section for making misleading statements.
Subpoenas Could Speed Up ‘Snail’s Pace’ Investigations
Enacted in 1997, CRIPA allows the Justice Department Civil Rights Division’s Special Litigation Section to investigate whether such public facilities have a pattern of violating rights. The law is aimed at exposing patterns of abuse, such as neglect at nursing homes or inadequate access to mental health care.
CRIPA applies only to public institutions including prisons and jails, juvenile correctional facilities and state- or locally-run nursing homes or facilities for the mentally ill or developmentally disabled.
Under the new health care law, the Civil Rights Division has the power to subpoena documents from institutions under investigation without going through a grand jury or a judge. The new power is designed to allow federal investigators to proceed with cases in which subjects have been uncooperative or refused to turn over documentation voluntarily. The Justice Department already has similar power to investigate health care fraud.
A Justice Department spokesman declined to comment for this article.
While the DOJ hasn’t used the subpoena powers yet, ongoing or recent CRIPA investigations have been reported in states including Indiana, Georgia, and New York.
Amy Fettig, staff counsel of the American Civil Liberties Union’s National Prison Project, said she is hopeful the new powers will help the Justice Department thoroughly investigate the conditions in state prisons, which she called a “national disgrace.”
“It’s an important step because, under CRIPA, state governments do not have to cooperate,” said Fettig. “It’s an extra tool in their toolbox.”
A transition report on the Civil Rights Division found that the Special Litigation Section under the George W. Bush administration had been micromanaged in a way that prevented it from formulating a meaningful agenda. In particular, it found that enforcement of CRIPA had “proceeded at a snail’s pace and resulted in relatively few enforcement actions.”
Assistant Attorney General for Civil Rights Thomas Perez recently named Judy Preston as Acting Chief of Special Litigation Section. The former chief, Shanetta Cutlar, stepped down from her position last month and reportedly told fellow employees she had lost the confidence of Justice Department leadership.
“I’m excited to see new leadership in special litigation,” said Fettig. “The most important thing that DOJ can do is to show more leadership on this issue. It’s a national disgrace and federal leaders should be investigating and calling for reform.”
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Four Democratic governors on Friday sent a letter to Attorney General Eric Holder in which they expressed their support for the health care law signed by President Barack Obama earlier this week and condemned the state attorneys general who have filed suit against the new law, according to a news release.
Minutes after Obama signed the health care legislation into law on Tuesday, the attorneys general of 13 states filed a federal lawsuit challenging the constitutionality of the new law. The suit, spearheaded by Florida Attorney General Bill McCollum (R), was filed in the Northern District of Florida. Virginia Attorney General Ken Cuccinelli also filed a separate suit challenging the law in the Eastern District of Virginia. Read the filings here.
The Justice Department has vowed to “vigorously defend” the health care law.
Here’s the full letter:
March 26, 2022
The Honorable Eric Holder, Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
RE: State of Florida, et al v. United States
Dear Attorney General Holder:
On behalf of citizens of our states, we write to let you know that that we oppose the actions of the state Attorneys General who have filed a lawsuit to challenge the constitutionality of the Patient Protection and Affordable Care Act. We believe their legal efforts will fail in court, unnecessarily delay the urgent need to get our citizens access to health care and waste our state tax dollars. As you prepare and deliver your defense of this landmark legislation, you have our commitment to work with you, at your request, to assist in this effort.
The Patient Protection and Affordable Care Act is, in our view, the single most important reform of our health care system in decades. The bill gives American families and small business owners more control over their own health care. It shifts health care decision making authority away from insurance companies to the citizens whose health is at risk. It ends discrimination against people with pre-existing conditions and allows young people to remain covered by their parents’ insurance until age twenty-six. As our states struggle to balance budgets and maintain services, the savings introduced through this legislation are critical to our future.
We are ready to offer you any help you many need and we will stand by your efforts to protect this most historic improvement of health care for every citizen of this nation.
Governor Christine O. Gregoire, Washington
Governor Bill Ritter Jr., Colorado
Governor Jennifer M. Granholm, Michigan
Governor Edward G. Rendell, Pennsylvania
The government must reduce inefficiencies and fraud in Medicare and Medicaid before either programs can be expanded, according to panelists at a meeting of the Republican Congressional Health Care Caucus Tuesday afternoon.
The panelists -– Jim Frogue of the Center for Health Transformation, Dennis Smith of Leavitt Partners and former CMS Medicaid director and primary care physician Christian Kryder -– agreed on the need for increased scrutiny and transparency of the government health care programs.
Frogue, who testified before a House Judiciary Committee subcommittee on the same topic last week, cited a 2009 study by Thomas Reuters that found that one-third of national health care spending is wasted. Part of this is due to fraud, he said, while the remainder is administrative waste, he said.
“It’s just so easy to steal from these programs,” Frogue said, adding that there are essentially no checks to ensure that the people are legitimately providing the services for which they submit claims.
Frogue also noted the difficulties law enforcement agencies face in combating health care fraud. The system is designed to pay now and ask questions later, and as a result, those who commit minor fraud fly under the radar, he said. The message to criminals, according to Frogue, is just don’t steal too much.
Frogue suggested making the government health care programs more like credit card companies, which vet customers beforehand.
Kryder, the former Medicaid director, called the government health care programs “deeply flawed” and cited the need to shift away from the current fee-for-service model.
According to Kryder, the problem with the fee-for-service model is that a third party is paying and the beneficiary is not involved. If beneficiaries were part of the payment equation, providers wouldn’t be able to submit fraudulent claims, as beneficiaries would be able to identify services they did not receive, he said.
Kryder also suggested posting all Medicare and Medicaid claims online with personal information to comply with the patient privacy regulations of the Health Insurance Portability and Accountability Act (HIPAA). This would allow claims to be “scoured” by thousands of eyes, not just by government officials if a claim or provider is actually flagged, he said.
The panel, which was moderated by caucus Chairman Rep. Michael Burgess (R-Texas), mentioned the current efforts to overhaul the health care system only during the question-and-answer portion of the panel discussion. While the panelists repeatedly cited figures in the billions of dollars of health care waste, they did not compare the cost of various health care legislation to savings that could be realized by reducing health care fraud and inefficiencies.
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The live-in girlfriend of Sen. Max Baucus (D-Mont.) is a political appointee at the Justice Department, DOJ spokesperson Tracy Schmaler told Main Justice today.
Both the Justice Department and Baucus issued statements Saturday stressing that Melodee Hanes, who had been the senator’s state director and one of Baucus’s recommendations for Montana U.S. Attorney, was hired for her qualifications.
“Mel applied independently with the Department of Justice, and, not surprisingly to anyone who’s looked at her resume, got the DOJ job on her merit,” Baucus said in a statement.
Hanes in June became acting Deputy Administrator for Policy in the Justice Department’s Office of Juvenile Justice and Delinquency Prevention, an arm of the DOJ that supports research, training and programs for juvenile justice programs throughout the country.
She was hired at Justice “because of her decades of experience in the field,” DOJ spokesperson Hannah August said in a statement.
Neither the Montana senator nor members of his Senate staff lobbied the administration to appoint Hanes to the DOJ political job, August added.
Justice spokeswoman Schmaler wasn’t immediately able to say what type of political appointment Hanes received. Executive branch standards for hiring and retaining political appointees vary. Some political appointees can be hired without using “traditional competitive hiring procedures,” according to the U.S. Office of Personnel Management.
As Main Justice first reported Friday, Hanes withdrew from consideration as Montana’s U.S. Attorney earlier this year over concerns that her personal relationship with the senator presented a conflict of interest.
Baucus, as the state’s senior senator, had recommended Hanes and two other lawyers for the plum post as Montana’s top federal prosecutor earlier this year. At the time, Hanes was on Baucus’s Senate payroll as his state director and had already become romantically involved with the senator.
In March, Hanes said she had withdrawn from consideration for U.S. Attorney because she had “been presented with other opportunities that I felt I could not bypass,” The Associated Press reported at the time.
In June, she left Baucus’s staff and joined the Justice Department.
“Mel and I were both separated from our former spouses when we got together. It wasn’t an ‘affair,’ Baucus said in his statement. “As we grew closer and things progressed, we knew it was time to begin the process of Mel transitioning out of my Senate office.
The revelation that Baucus had recommended a staffer with whom he was romantically involved for a U.S. Attorney position comes at an awkward moment for the Senate Finance Committee chairman. The Montanan is the Senate Democrats’ point man on health care reform, and has already been under scrutiny for his ties to health care industry lobbyists.
The Republican National Committee on Saturday called for a Senate ethics investigation of Baucus, questioning whether he used “his Senate office to advance a taxpayer funded appointment for his staff-member girlfriend.” The situation “raises a whole host of ethical questions,” the RNC said.
The Senate is working through the weekend on the historic health care legislation, with Baucus leading the floor debate.
Senate Majority Leader Harry Reid (D-Nev.) issued a statement of support. “Max is a good friend, an outstanding senator and he has my full support,” the statement said, according to The Associated Press.
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The Department of Justice and Congress are working together to beef up the government’s ability to fight health care fraud.
Assistant Attorney General Tony West told the Senate Judiciary Committee Wednesday the DOJ needs Congress’s help. “We cannot combat this fraud alone,” said West, who has headed the DOJ’s Civil Division for eight months.
Good timing. Later Wednesday, Sen. Ted Kaufman (D-Del.) introduced the Health Care Fraud Enforcement Act to help the Justice Department out.
The act would make a few key reforms, Kaufman said, including changing sentencing guidelines for criminals convicted of health care fraud, make punishments “commensurate with costs” of the fraud, and increase whistleblower payments.
According to a news release from Kaufman’s office, the bill would increase the sentences for health care fraud convictions, redefine the definition of what constitutes a health care fraud offense to include drug marketing, kickback and ERISA crimes, increase whistleblower claims, create a mental state requirement for trying health care fraud offenses and devoting $20 million annually from 2011 to 2016 in federal funding to increase Medicare fraud investigations and prosecutions.
“We have seen an increasing number of sentences of fines for where there is really serious egregious conduct. Fines have just added to the cost of doing business,” Sen. Arlen Specter (D-Pa.) said at the Senate Judiciary Committee hearing this morning.
On the Senate floor Tuesday, Kaufman spoke about the bill, the Health Care Fraud Enforcement Act of 2009. “We must also ensure law enforcement has the tools it needs,” Kaufman said.
West said that “fighting Medicare and Medicaid fraud has become a “Cabinet-level priority,” with the DOJ and HHS’s combined efforts.
The two agencies in May announced the Health Care Fraud Prevention and Enforcement Action Team (HEAT) to pursue Medicare and Medicaid fraud. ”If we can put these people in prison, we will do that,” West said. “That’s a commitment the department has made.”
At the hearing, Sen. John Cornyn (R-Texas) said he wanted to see the DOJ’s Civil and Criminal Divisions beef up their staff to deal with health care fraud. “The bad guys outnumber the good guys,” Cornyn said. “I don’t know how we can expect [The Centers for Medicare and Medicaid Services] to do a better job, when out of the 4.4 million claims you get every day you can only review 3 percent of them. I’m not sure we are ever going to have enough good guys to outnumber the bad guys in this.”
Sen. Chuck Grassley (R-Iowa) questioned West on the 1,040 pending qui tam lawsuits waiting for the DOJ to sign on. “I find it troubling that some cases are lingering for 36 months,” Grassley said of the whistle blower suits. “Does the Justice Department have a plan to clear this backlog in a timely manner? And if so, what is it?”
Those cases, West said, are being “actively investigated.”
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Rep. Mike Ross (D-Ark.) isn’t worried about a group of activists’ calls for an investigation into his personal finances, the Arkansas News reported yesterday.
Citing a September report from the non-profit investigative journalism Web site Pro-Publica, Citizens for Responsibility and Ethics in Washington sent a letter to the DOJ’s Public Integrity Section asking them to probe a two-year-old real estate transaction.
The DOJ responded to CREW’s letter with a boilerplate response telling the watchdogs they took the complaint “seriously,” the group announced yesterday.
In 2007, Ross and his wife Holly sold a pharmacy they owned in Prescott, Ark., to USA Drug, a company based in Pine Bluff, Ark. According to CREW, USA Drug overvalued the sale by at least $140,000 when they bought it for $420,000.
Pro-Publica said in their investigation that the Ross family made much more money. In addition to the $420,000, USA Drug owner Stephen LaFrance paid the Ross family between $500,000 and $1 million for the pharmacy’s assets, and paid Holly Ross an additional sum valued between $100,001 and $250,000 for signing a non-compete agreement.
That’s a haul worth somewhere between $1 million and $1.67 million, Pro-Publica said.
The question for CREW is whether the pharmaceutical industry used the sale to influence Ross, chairman of the conservative Blue Dog Democrats. Ross has been an outspoken opponent of Democratic health care reform measures supported by liberals, including the public option.
With the sale of the business, CREW wrote in their letter, Ross “has gone from accepting campaign contributions from those with legislative interests before him to accepting significant personal benefits of dubious legality.”
The sale occurred well before President Obama’s efforts to reform health care got underway. According to the News, Ross responded to the complaint:
“This business transaction had nothing to do with my being a member of Congress and everything to do with an Arkansas-based family pharmacy business buying a pharmacy my family and I have worked hard since 1993 to develop into a successful, trusted and respected business in my hometown.”
According to the News, Ross spokesman Brad Howard dismissed CREW’s concerns. “Anyone with a pen and piece of paper can file a complaint with the Department of Justice,” Howard said. “This was nothing more than a standard DOJ form letter acknowledging they received a complaint. There is really no news here.”
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You may remember that earlier this month, leaders of the health care industry went to the White House to promise President Obama that they would cut health care costs. This commitment was intended to establish a good-faith relationship and to show all observers that the health care industry was being proactive about controlling costs. Now health care companies are hedging on the commitments they made to the President, arguing that they will be ruled as a violation of antitrust law. That’s what happened to former President Bill Clinton’s voluntary cost-control program in 1993. Read the full New York Times article here.