What are false claims? In general, a false claim is a fraudulent claim that a person or organization submits to the government for payment or approval. In healthcare, you may face penalties for billing Medicare for services not rendered, improper physician compensation arrangements, lack of physician supervision, discrepancies in Functional Capacity Evaluations (FCEs) - and the list goes on.
These days, a variety of state and federal agencies may contact you to discuss a potential false claim or violation of the Anti-Kickback Statute. These include:
Even if officials say that you are not under investigation or are not the target of the investigation, speak with an experienced anti-kickback/false claims attorney before you do anything else. Just because you are not under investigation now does not mean you are not a potential target.
Experience matters, especially if you are facing a federal False Claims Act investigation or an enforcement action (qui tam whistleblower proceedings). Do not rely on just any business attorney. Turn to lawyers who know this highly complex area of law and have experience negotiating with the DOJ, OIG, HHS, AG, TDI, and associated MFCUs.
Contact Hendershot, Cannon & Hisey by calling (713) 909-7323. Our Houston-based attorneys serve healthcare organizations throughout Texas.
Understanding the Law:
Under the federal False Claims Act, 31 U.S.C. sections 3729-3733, it is illegal to:
The word "knowingly" is somewhat deceptive. In fact, if you knew or should have known that you were filing a false claim, for example, then you can be found guilty under the False Claims Act. The law calls this "acting in deliberate ignorance" or "reckless disregard."
Understanding the Penalties:
If you are found guilty under the federal False Claims Act, you will be required to pay a civil penalty between $5,000 and $10,000 in addition to paying the government three times the amount of damages it sustained from your alleged false claim. There are also criminal penalties under sister statutes such as the Anti-Kickback Statute (AKS).
The 60-Day Rule:
Under the Affordable Care Act, providers who have a fraud claim filed against them have only 60 days to provide payment for the alleged fraud after it has (or should have) been discovered. Providers who fail to report overpayment and provide repayment within the 60-day window will be found guilty per se of a False Claims Act violation.
Investigations into the False Claims Act begin for a variety of reasons. A False Claims Act probe can begin as the result of another investigation. In some cases, the investigative agency tells providers that they are not the target of the probe. However, the provider's answers may be used to start investigations against them.
Take billing fraud as one very common allegation. In recent years, the government has pushed hard against billing practices and compensation arrangements it perceives to be fraudulent.
In addition, an investigation can encompass more than overtly fraudulent actions. Even if the billing is proper, the investigation may focus on tainted claims, which are claims that are fraudulent in any respect or the result of a kickback or an improper referral or relationship.
If, for example, a diagnostic center leases a building to a physician at below market value, any claim involving a patient referred from the doctor to the diagnostic center is considered a tainted claim because the doctor received a kickback (lower rent) for it.
Even if the billing itself is proper, an investigation may center on whether a transaction or relationship was improper. Under the False Claims Act, a care provider does not have to be aware that a violation has even occurred. The government may hold you accountable if it can prove that you or your company should have known of the violations.
Healthcare organizations can protect themselves from an OIG investigation (or an investigation from other state and federal agencies) by preventing problems in the first place.
Despite careful billing practices, healthcare businesses may still be contacted by the government. It's important to contact an attorney before responding to or discussing the situation with the government, even when the agent says that the healthcare entity is not a target. Information the government collects can be used to open a new investigation later, and your own admission could be used against you.
At Hendershot, Cannon & Hisey, we have experience representing clients at all levels of a state or federal agency's investigation, including:
If a government agency has requested information or an interview or has served a notice or subpoena, our health law attorneys can help protect you and your organization. Our attorneys draft compliance programs and advise clients on the law. We handle civil investigations from any state or federal agency (DOJ, OIG, HHS, AG, TDI, MFCU) as soon as you receive a phone call or letter from the government agent.
Tainted claim investigations, like all false claim investigations, should not be taken lightly. If you have been contacted by the DOJ, OIG, AG, or TDI, do not delay in protecting your business with the help of an experienced False Claims Act and anti-kickback attorney. Hendershot, Cannon & Hisey, P.C. represents clients in Houston, Texas, and across the United States.