Transcript Civil False Claims - The Bennett Law Firm, Houston Texas

Regulatory Control of Providers
Financial Relationships
Civil False Claims
The Act
Civil liability may occur when a
person or corporation
• Knowingly presents or causes to be
presented a false or fraudulent claim
for payment to the United States.
• Knowingly uses a false record or
statement to obtain payment on a
false or fraudulent claim paid by the
United States.
• Engages in a conspiracy to defraud
the United States to obtain allowance
What constitutes “knowing” or
“knowingly”
• Having actual knowledge of the
falsity of a claim
• Acting in deliberate ignorance of the
truth or falsity of the claim.
• Acting in reckless disregard of the
truth or falsity of the claim.
• Specific intent to defraud is not
required.
Monetary Penalties
• $5,000 to $10,000 civil monetary penalties,
per claim.
• Treble damages, i.e. three times actual
improper payments collected by a provider.
• A claim is each HCFA 1500 from submitted,
not each CPT Code contained on the form.
• Permissive exclusion from
Medicare/Medicaid programs.
Statute of Limitations
• Six year of statute of limitations
• Prosecutors often insist on voluntary
waiver of the statute of limitations by
the provider as a condition of
negotiating settlement of a claim.
Regulation of Providers Financial
Relationships
Civil False Claims
Qui Tam or Whistleblower Actions
General Criteria
• Cases are initiated by a private
individual who brings the claim
against a provider to the attention of
the federal government.
• The claim or issue must not have
been previously disclosed to the
public.
• The Department of Justice has 60
days to investigate or obtain
Quit Tam Actions -- Continued
• If after investigation, the Department
of Justice declines to pursue the
claim, the individual whistleblower
may do so.
• The whistleblower may receive from
25 to 30 percent of any recovery if
the government does not intervene,
15 to 25 percent if the government
Regulation of Providers’
Financial Relations
Civil False Claims
Enforcement Actions
National Investigations and
Initiatives
• The physician at Teaching Hospitals
Audit Program (PATH)
• DRG Payment Window Recovery
Initiative (72 Hour Window Project)
• Lab Unbundling Project
• national Discharge/Transfer Claims
Recovery Program.
• Pneumonia Upcoding
National Investigations and
Initiatives
• The physician at Teaching Hospitals
Audit Program (PATH)
• DRG Payment Window Recovery
Initiative (72 Hour Window Project)
• Lab Unbundling Project
• national Discharge/Transfer Claims
Recovery Program.
• Pneumonia Upcoding
Regulation of Providers’
Financial Relations
Medicare/Medicaid Fraud and Abuse
The Safe Harbors
The Safe Harbors
• Space and equipment rental
• Personal services and management
contracts
• Sale of a physician’s practice
• Discounts
• Employees
• Group purchasing organizations
Safe Harbors -- continued
• Waiver of beneficiary coinsurance and
deductibles.
• Certain investments, including investments
in ambulatory surgical centers.
• Recruitment of physicians in obstetrical
practice to rural areas.
• Payment of malpractice insurance
premiums in rural areas.
Safe Harbors -- Continued
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Risk Sharing
Referral Services
Warranties
Increased coverage, reduced cost-sharing
amounts, or reduced premium amounts
offered by health plans
• Price reductions offered by health plans
Penalties
• Criminal statute requiring proof of criminal
intent.
• Fine of up to $25,000 and or up to five
years imprisonment for each violation.
Regulation of Providers’
Financial Relations
Medicare/Medicaid Fraud and Abuse
Civil Money Penalties
Civil Money Penalties Law
• A civil statute that parallels the
antikickback statute, but is more
expansive.
• It prohibits and imposes civil
penalties on:
– Various types of improperly filed claims
– Payments for inducing reduction or
limitation of services
– The criminal conduct also punished as
Civil Monetary Penalties
• Penalties
– Fines up to $50,000
– Repayment of up to three times the
amount of improper reimbursement paid
by the government
• Exclusion from federal health
programs
– May be mandatory or permissive,
depending on a number of factors
The Stark Law
Prohibitions Against Physician SelfReferral
Overview
• Stark I --The statute generally prohibits a
physician form referring Medicare patients to a
clinical laboratory in which that physician or a
member of that physician’s immediate family has
a financial relationship. In addition, the clinical
laboratory may not file a Medicare claim for
services rendered at the laboratory.
• Stark II -- Expanded the Stark I referral
prohibition to include other designated health
services and broadens the self-referral prohibition
to Medicaid services.
Designated Health Services
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Clinical laboratory services
Occupational therapy services
Radiation therapy services
Parenteral and enteral nutrients,
equipment and supplies
• Prosthetics, orthotics and prosthetics
devices
Designated Health Services -Continued
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Physician therapy services
Radiology services
Durable medical equipment
Outpatient prescription services
Home health services
Inpatient/outpatient hospital services
Financial Relationship
• An ownership or investment interest
in the entity to which the referrals
may be made -- this includes
ownership through debt, equity, or
similar means. Also includes an
interest in an entity that holds an
ownership or investment interest in
any entity providing the designated
health service to which a referral may
be made.
Financial Relationship -Continued
• A compensation arrangement
between the physician (or immediate
family member) and the entity is any
arrangement involving remuneration
between a physician (or immediate
family member) and an entity.
Remuneration is defined as anything
of value, with certain technical
exceptions.
General Exceptions to Both
Ownership and Compensation
Arrangement Prohibitions
• Ownership in publicly traded securities and
mutual funds.
• Ownership interests in hospitals in Puerto
Rico and in rural areas -- The rural area
exception requires that substantially all of
the services be provided to residents of the
rural area.
Exceptions Related to
Compensation Arrangements
• Rental of office
space and
equipment
• Bone fide
employment
• Personal services
arrangement
• Physician
incentive plan
• Physician
recruitment
• Group practice
arrangements with
a hospital
• Physician
payments
Reporting Requirements
• The Stark Law requires providers to disclose the
names and unique physician identification number
of physicians who have financial relationships
with the entity or family member with such
relationships.
• The reporting requirements may not be
implemented until HCFA develops and issues a
form and instruction booklet addressing the
reporting requirements.
• The form has not been created in the over halfdecade since the law was enacted.