There has been a significant financial investment by the federal government to strengthen the law enforcement agencies that are tasked with fighting fraud and waste in the Medicare and Medicaid programs.
The government has made it clear that they would rather spend funds tracking down violators than paying fraudulent claims. One of the tools in the government’s arsenal is the False Claims Act.
The False Claims Act (“FCA”) protects the federal government against any doctor or entity that submits false or fraudulent claims for payment under federal programs. And although the FCA is not new, its enforcement and penalties have increased in recent years.
Investigations and prosecutions for violations of health care fraud are among the most prevalent actions taken by the federal government under the FCA.
The FCA provides that “any person who knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval” violates the act. Also, “any person who knowingly makes, uses or causes to be made a false record or statement that is material to a false or fraudulent claim” violates the act (31 USC § 3729).
In addition, any physician or other medical provider that retains money paid by the federal government that amounts to an overpayment or an error in payment can be found to have violated the FCA.
The penalties for violating the federal FCA can be financially devastating to a medical provider or a health care entity.
The penalties are assessed on a per-claim basis. Each false claim carries its own penalty. First, each violation or false claim carries a civil monetary penalty (CMP) of no less than $10,781 and not more than $21,563. Second, in addition to CMP, damages are calculated by taking the amount the medical provider received from the federal government for the false claim and multiplying that by three. And third, the medical provider also is liable for the costs to the federal government for bringing the civil action.
These civil monetary penalties, damages, and costs are assessed on each false claim, so it is possible that the final tally can run into the millions, if not billions of dollars.
On top of the CMP, damages and expenses, a medical provider may be excluded permanently from the Medicare and Medicaid programs.
Being shut out of government programs or forced into a Corporate Integrity Agreement (CIA) can cripple, if not wipe out, a health care provider. Without the ability to treat the 55 million Medicare and Medicaid beneficiaries, it is difficult for a medical provider to survive.
The Office of Inspector General (OIG) publishes the excluded individuals’ and entities’ names on their website. If an individual is excluded from the Medicare program, no other health care entity is able to hire and/or bill for services rendered by that individual provider.
This punishment can be career-ending.
Sometimes, as part of a settlement with the government, a provider or healthcare entity can avoid permanent exclusion by agreeing to pay fines and by agreeing to continuous monitoring by the federal government for a period of years.
Finally, violations of the FCA can bring criminal penalties to the individuals involved in the violation.
Because a corporation cannot be put in prison, the federal government will go after the individuals that control the organization. Examples of individuals can be criminally prosecuted include the CEO, CFO and medical director of the health care entity.
The criminal penalties for submitting false claims to the federal health care program can be up to five years in prison plus a fine of $25,000 (42 USC 1320a-7b).
Given the extreme nature of the penalties, fines, damages and punishments, it is imperative that a medical provider who knows or suspects they are under investigation for an FCA violation, to retain an attorney to help protect and guide them through this process.
There is no room for error, and the federal government’s resources for prosecution are plentiful. It is important to choose an attorney who is familiar with the FCA and the government’s methods of prosecuting and settling actions brought for violations.
Chapman Law Group is experienced in defending against national actions brought for violations of the FCA. We can help medical providers identify possible violations and can help providers explore their options if an action has been filed against them.
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