Federal prosecutors are touting record-level numbers in the fight against health care fraud, saying government teams recovered $4.2 billion in fiscal year 2012.

The findings were released February 11 in the annual Health Care Fraud and Abuse Control Program. Since 1997, the program, under the direction of the U.S. Justice Department and the U.S. Department of Health and Human Services, has returned more than $23 billion to the Medicare Trust Funds, the report said. DOJ said it recovered $4.1 billion in fiscal year 2011.

Last year, according to the report, DOJ opened 1,131 criminal health care fraud investigations, involving more than 2,140 potential defendants. The report said 826 defendants were convicted—compared with 743 from the previous year. More than 2,000 health care fraud investigations were pending, the report said. (In fiscal year 2011, prosecutors had 1,873 health care fraud criminal investigations pending, involving 3,118 potential defendants.)

On the civil front, DOJ lawyers opened 885 fraud investigations. The department said the enforcement of the False Claims Act and the Federal Food, Drug and Cosmetic Act have produced "record-breaking results." At the agency level, the HHS office of the inspector general said it excluded 3,131 individuals and entities from participation in federal health care programs.

Attorney General Eric Holder Jr. said in a statement that "our relentless pursuit of health care fraud resulted in the disruption of an array of sophisticated fraud schemes and the recovery of more taxpayer dollars than ever before." The HHS secretary, Kathleen Sebelius, said "we are gaining the upper hand in our fight against health care fraud."

Arnold & Porter white-collar criminal defense partner Kirk Ogrosky, who formerly supervised DOJ criminal health care enforcement, said false claims settlement numbers "are not a true reflection of real enforcement progress but are simply the sums extracted from legitimate providers."

"The true tell in the numbers is the number of criminals indicted and convicted," Ogrosky said. There’s some sign of progress, he said, but adequate funding remains an issue.

"With hundreds, if not thousands, of criminal cases sitting idle, I would hope that DOJ and HHS would move their resources from FCA work to fighting the real crime," Ogrosky said. "Shifting resources to criminal enforcement would radically improve enforcement and would improve relations between industry and the government."

Contact Mike Scarcella at mscarcella@alm.com.