False Claims
The government's most often-used weapon against fraudulent claims is the Civil False Claims Act. However, there are other federal fraud laws that the government may use in its prosecution of medical practitioners, including the Civil Monetary Penalties Law, the Program Fraud Remedies Act, the Criminal False Claims Statute, the Health Insurance Portability and Accountability Act ("HIPAA"), and various federal criminal provisions for false claims and false statements. These laws are often applied together to provide harsher penalties against defendants the government chooses to prosecute.
A. Generally, these laws prohibit:
- the submission for payment of a false claim, that is known to be false or fraudulent (includes deliberate ignorance or "reckless disregard")
- the use of false records (that are used to support payment or approval of a false claim, upcoding or the provision of care that is not medically necessary)
- the use of reverse false claims (use of a false record to conceal, decrease or avoid an obligation to the federal government - like a credit balance)
- presenting a written, certified claim that omits a material fact used in submitting a false claim
- mail fraud or conspiracy (prohibited by criminal statutes that are often used in conjunction with civil fines and penalties)
While many of the federal fraud laws apply to claims made to Medicare and Medicaid for reimbursement, the HIPAA creates 5 new offenses (healthcare fraud, embezzlement/theft, false claims, obstruction and money laundering) which may be prosecuted in certain cases under the federal criminal statutes if any healthcare benefit is applied for under any public or private plan or contract.
B. Statutory Penalties
The various laws provide for both civil and criminal remedies, which the government may use at its discretion depending upon the nature and amount of the claim. The prosecution will also look at whether there is a pattern of fraud and whether the defendant has made a good-faith effort to establish and manage a compliance program. Fines can be up to $5,000 per false claim, plus treble damages and attorneys' fees - penalties which can bankrupt even a large company.
C. Risk Areas For Physicians
- CPT Upcoding
- Unbundling comprehensive procedure codes
- Billing mutually exclusive codes during the same operative session
- Billing for services where there is no documentation or documentation that does not support CPT code use
- Providing medically-unnecessary services (e.g., excessive nursing home visits, certification of unnecessary home health or rehabilitation plans of care or DME)
- Failing to repay credit balances
- Signing false or misleading certificates of home health plans of care and certificates of medical necessity for DME/prosthetic and orthotic supplies
- Providing false information on provider enrollment forms
- Duplicate billing
- Submitting claims for services not provided or for medically-unnecessary services not otherwise covered under federal healthcare programs
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