NEWS
West Virginia University College of Law
New Fraud Enforcement in West Virginia : What Providers Need to Know
• Billing for a professional service when the service was provided by a non-professional
In any of these cases , the provider is doing something differently than what the claim for reimbursement indicates , and the provider makes more money because of it .
The United States ( US ) Attorney ’ s Office announced in January the formation of the Mountaineer Health Care Fraud Strike Force to combat healthcare fraud in West Virginia . The strike force will use a data driven approach to detect fraudulent federal healthcare billing . This is part of a nationwide effort by government officials to claw back 3 % or more of healthcare dollars that are lost to fraud , waste , and abuse .
One of the most frequently enforced laws is the False Claims Act , a civil law that carries massive civil fines . Sometimes called Lincoln ’ s Law , the False Claims Act was passed during the Civil War to combat fraud by government defense contractors . The law is designed to reach anyone who defrauds the government , though the government increasingly focuses on healthcare fraud as healthcare consumes a growing portion of overall federal spending .
What is a False Claim ?
The law penalizes anyone who knowingly submits a false or fraudulent claim to the US government for payment . In the context of healthcare , this means fraudulent billings to Medicare , Medicaid , or other federally funded healthcare programs . One need not be a doctor to violate the False Claims Act , nor even a healthcare professional . The law applies to anyone who fraudulently bills the government .
The False Claims Act is not limited to doctors or even healthcare professionals . Anybody can commit a false claim if they fraudulently bill federal healthcare programs , Medicare , Medicaid , or any another federally funded healthcare program , healthcare professional or otherwise .
What counts as false or fraudulent ? In its simplest form , a person violates this act when they seek payment for services not provided or is provided but is mischaracterized in the billing . Some common examples include :
• Billing with a CPT code that reflects more time or complexity than the actual case involved
• Double-billing by billing for a service alongside a bundled code that already compensates for that service
The government has a low burden of proof , as this is a civil case . It must prove its case by a preponderance of evidence , meaning it must convince the judge or jury that their version is more likely true than not .
What Level of Intent is Required ?
To commit a false claim , a person must knowingly defraud the government . This does not necessarily mean they had actual knowledge of the fraud , however . A person also commits a false claim if they acted in “ deliberate ignorance ” or “ reckless disregard ” of the truth . In one case , a psychiatrist regularly billed Medicaid for longer durations of therapy than he provided . He had an agreement with his assistant to bill for a specified length of time and rarely checked to be sure that the billing reflected when the therapy visits were shorter . A court held this was a knowing violation of the law and because it is no defense to be an “ ostrich with his head in the sand ” who remains purposefully ignorant .
What is a Qui Tam ?
The government relies largely on whistleblowers to enforce false claims violations . Whistleblowers , also called relators , are given the power to bring claims on behalf of the federal government , called qui tams . Relators can keep a percentage of recovered money , sometimes amounting to multiple millions of dollars . The False Claims Act also provides employment protections for whistleblowers who bring claims against their employers .
What are the Penalties for Violating the False Claims Act ?
The False Claims Act carries significant fines because the government can charge a penalty for each individual false claim . The minimum penalty is $ 11,665 per false claim , along with three times the amount of actual damages . Take a hypothetical of a provider who upcodes a procedure , using a billing code reflecting more time than he spent on patients . He does so a total of 50 times , amounting to an extra $ 200 in reimbursement each . His penalty , at minimum , would be $ 613,250 .
The government also has the legal authority in some cases of fraud to exclude providers from Medicare and Medicaid , meaning they cannot bill those programs for some designated time in the future .
14 • www . wvsma . org