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Copyright (c) 1999 Alabama Law Review
Alabama Law Review

ARTICLE: The Empire Strikes Back: A Critique of the Backlash Against Fraud and Abuse Enforcement

Fall, 1999

51 Ala. L. Rev. 239


Timothy Stoltzfus Jost * and Sharon L. Davies **



If there is any proposition on which all observers of our health care system agree, it is that Medicare and Medicaid fraud and abuse is morally wrong and fiscally harmful. 1 A recent poll conducted by the League of Woman Voters found that 65% of respondents believed that Medicare's biggest problems are waste, fraud and abuse. 2 Vice President Gore was the point person for the most recent White House health care fraud and abuse initiative, suggesting that toughness on fraud and abuse is recognized as a popular and noncontroversial political stance. 3 Congressional Republicans agree, and they have been equally vocal in condemning fraud and abuse and calling for vigorous action to stamp it out. 4 Even providers, often the objects of fraud and abuse enforcement, affirm their opposition in principle to fraud and abuse. 5 The American Medical Association's Principles of Medical Ethics, for example, require that physicians "shall deal honestly with patients and colleagues, and strive to expose those physicians deficient in character or competence, or who engage in fraud or deception." 6

It is, of course, not remarkable that Medicare and Medicaid fraud and abuse should be so uniformly condemned. Though fraud was not always regarded as a criminal offense by the Anglo-American common law, the criminalization of fraud has ancient roots. 7 Fraud has long been considered to be malum in se, subject to both civil and criminal sanctions. 8 Fraud against the federal government has been a criminal and ...
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