False Claims Act

There are numerous ways in which a health care provider could be subject to fines, penalties, and even criminal prosecution under the Federal and State False Claims Act. Providers who are unaware of the pitfalls of the Federal and State False Claims Act statutes can find themselves inadventently subject to large civil monetary penalties and possibly criminal prosecution.

Potential violations include:

• • Services Not Rendered: Billing for services that were not performed on a patient is a violation of the False Claims Act.
  • Ghost Patients: Submitting claims for services, tests or medical devices to a patient who does not exist or who the provider has no physician-patient relationship with is a violation of the False Claims Act.
  • Kickbacks 42 U.S.C. §1328-7b(b): Receiving money, property or remuneration to induce or reward the referral of patients or health care services payable by the government including Medicare and Medicaid can be a violation of the False Claims Act.
  • Unbundling: Billing tests or treatment separately where there is a procedure code (ICD-9 or ICD-10) that covers the service in order to receive increased reimbursement.
  • Up-Coding Services: This includes AMA Current Procedural Terminology (“CPT”) codes; Evaluation and Management (“E&M”) codes; and International Classification of Disease (“ICD-9 or ICD-10”) codes. States and Federal governments scale payments based off of these codes. Assigning a higher code for treatment rendered can be a violation of the False Claims Act.
  • Lack of Medical Necessity: This includes performing additional treatments or tests which are not clinically necessary in order to bill government programs more.
  • Research Grant Fraud: This includes falsifying research data and results, falsifying a research grant application in order to secure a grant, over-billing costs and other expenses associated with the grant, using grant money for other unrelated research, and improper conflicts of interest by the principal investigators.
  • Stark and Anti-Kickback 42 U.S.C. §1395nn and §1396b: Generally a physician is prohibited from making any referral to a person or entity in which the physician has a financial interest. This is generally referred to as physician self-referral. CMS is responsible for implementing a vast array of Stark rules and regulations. There are exceptions to Stark and an attorney skilled in Stark law can assist you in determining if you or your practice is engaging in prohibited conduct.
  • Utilization of Excluded Providers: When a provider submits a claim on behalf of a provider that is ineligible to bill Medicare and Medicaid, this can be a violation of the False Claims Act. This is why providers must always consult with the online HHS database of excluded persons and entities.
  • Insufficient Physician Supervision: Performing procedures without the required physician supervision pursuant to Medicaid, TriCare, and the Federal Employees Health Benefit Program conditions of participation.
  • Duplicate Billing
  • Accepting Money or Gifts From a Drug or Device Company

Health care providers need to be vigilant that their billing practices conform to CMS and other federal guidelines. An inadvertent error or procedural issue could lead to crippling fines and criminal penalties. Therefore, providers should seek guidance from a false claims act attorney to ensure that they are compliant with Federal and State regulations, including the False Claims Act.