Thursday, April 22, 2010

Why Standard of Fraud is So High in Child Welfare

Ever wanted to know why child welfare information and records are not open to the public?

Ever wanted to know why the circumstances of fraud in child welfare are so hard to prove in a court of law?

Well, here it is:

In the case of Tampico v. EOUSA, No. 04-2285, slip op. at 8 (D.D.C. Apr. 29, 2005), the court clarified the position that is applied to all child protection cases, as it is a federally funded law enforcement action by qualifying certain records containing identifying information pertaining to children involved in criminal proceedings by statute to the Freedom of Information Act under Exemption 3.

Congress exempted nine categories of documents from the broad disclosure requirements of the Freedom of Information Act. Exemption 3 applies to documents that are specifically exempted from disclosure by another statute. 5 U.S.C.S. § 552(b)(3). Exemption 6 protects personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. 5 U.S.C.S. § 552(b)(6). Exemption 7(C) excludes records or information compiled for law enforcement purposes, but only to the extent that the production of such materials could reasonably be expected to constitute an unwarranted invasion of personal privacy. 5 U.S.C.S. § 552(b)(7)(C).

Then, under the Federal Victims Protection and Rights Act (3) the term “child abuse” means the physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child. 

As seen in the language of the statute, the terms "child abuse" and "child neglect" are fungible. One in the same.

But this still begs the question, "Why are the state contracted child placing and child welfare agencies, States and U.S. Administration for Children and Families not subject to disclosure of operations for publication in the media?

Here is the case.

UNITED STATES DEPARTMENT OF JUSTICE et al. v. REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS et al.

No. 87-1379

SUPREME COURT OF THE UNITED STATES

489 U.S. 749; 109 S. Ct. 1468; 103 L. Ed. 2d 774; 1989 U.S. LEXIS 1574; 57 U.S.L.W. 4373; 16 Media L. Rep. 1545

December 7, 1988, Argued
March 22, 1989, Decided

The court addressed whether disclosure of the rap sheet constituted an unwarranted invasion of privacy within the meaning of 5 U.S.C.S. § 552(b)(7)(C). The court held that the fact that an event was not wholly "private" did not mean that an individual had no interest in limiting its disclosure. The privacy interest in a rap sheet was substantial. Whether an invasion of privacy was warranted had to turn on the nature of the requested document and its relationship to the basic purpose of the FOIA, which focused on the citizen's right to be informed about the government's actions. The news groups in this case did not intend to discover anything about the conduct of the agency, and response to the request would not shed any light on the agency's conduct. Thus, the public interest in release of a rap sheet was not the type of interest protected by the FOIA. The court held, as a categorical matter under § 552(b)(7)(C), that a third party's request for law enforcement records about a private citizen could reasonably be expected to invade that citizen's privacy, and that when the request sought no official information about the government, the privacy invasion was unwarranted.

This is interpreted to mean that it would be an invasion of a child's privacy, or in more familiar terms, not in the "best interest of the child" to release under FOIA any federally funded law enforcement activities pertaining to child abuse for publication in the media. This was theory was qualified under FOIA Exemption 6.

But of course, there is another reason why child welfare is so secretive. We know there are federal enforcement statutes to provide accountability against child welfare fraud, but the U.S. Department of Health and Human Services Office of Inspector General has what is called in the legal community, "Safe Harbor Provisions". Safe Harbor are exactly what you think; they are a place in the law where an individual or corporation can go to as a safe haven when it has been found that they have been practicing questionable and improper billing cost activities that are punishable by law.
HHS OIG Solicitation for Safe Harbors and Fraud Alerts 2009

Now, we can understand why the MFCUs and the States Attorney General will do nothing, (except for Roy Cooper) as they are too lazy to find the statutory passage to go into the "Exemption 3 and 6 safe harbor" and attack the Child Welfare Medicaid Fraudfeasor with full prosecution and recovery.

We can also understand why Child Abuse Propaganda continues to thrive as there is no public scrutiny of the data that is generated nor the research that is published as we can see "abuse and neglect" are lumped into the same Exemption categories.  With poverty codified as neglect, the propaganda campaigns are in full force.   Nothing more than malafide scienter on the part of these universities to protect federal aberrant billing practices.
Michigan Child Abuse Prevention Month Complete Toolkit 2010


Each state has a Medicaid Fraud Control Unit (MFCU), stationed in with the States Attorney General. These MFCUs has the powers and funding to stop Medicaid fraud. Section 1128B(b) of the Social Security Act (the Act) (42 U.S.C. 1320a–7b(b)) provides criminal penalties for individuals or entities that knowingly and willfully offer, pay, solicit, or receive remuneration in order to induce or reward business reimbursable under the Federal health care programs. The offense is classified as a felony and is punishable by fines of up to $25,000 and imprisonment for up to 5 years. OIG may also impose civil money penalties, in accordance with section 1128A(a)(7) of the Act (42 U.S.C. 1320a–7a(a)(7)), or exclusion from the Federal health care programs, in accordance with section 1128(b)(7) of the Act (42 U.S.C. 1320a–7(b)(7)), yet enforcement is exempted under 3 and 6 of FOIA.

This is why only the bravest warriors enter the battlefield of the court to bring forth qui tams.

The barriers of entry into the "safe harbor"  in alleging fraud or mistake in child welfare claims as a party must state with particularity the circumstances constituting fraud or mistake in a court of law.  It becomes an epic battle of honor for the parties who choose to battle the ugly beast named fraud in child welfare.   Even though malice, intent, knowledge, and other conditions of a person's mind who commits child welfare fraud may be alleged generally in litigation, it is still the burden of the party to educate the court on the facts, the honor of the warrior to tell his story...



Stop Child Welfare Fraud

It must be noted that there is still no mention of any oversight of the pervasive fraud, just focusing on child welfare, with TRICARE the military and military families version of Medicaid. Also, child welfare fraud is not exclusive to Medicaid, as the false claims exist in the areas of Title IV-E, the next largest area of child welfare fraud.
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