Have you ever experienced being scammed by a healthcare service provider through subscribing to a fraud monthly insurance or billed by services not rendered? How did you respond when you knew that a physician had falsified your diagnosis to justify your laboratory tests that weren’t necessary? How did you react when a hospital billed for a higher-priced treatment than its actual price? These are the first questions a medicare whistleblower asks.
If these questions amplified your silence, you are not alone. In this fight against Medicare fraud, your legal knowledge, inner strength, and bravery matter.
Medicare and Medicaid have been part of your life as your government privileges. Since its inception in 1965, the U.S. government has been helping the lives of the less fortunate by granting health care access. Today, there are 44 million beneficiaries enrolled in the Medicare program. By 2030, the Center for Medicaid and Medicare Services expect an increase of enrollees to 79 million.
As the government pushes for a quality healthcare program, the community of medical fraud pulls down the healthcare system.
Statistics conducted by John Hopkins Bloomberg School of Public Health, fraudulent activities have lost around 30 billion to 140 billion dollars by attacking government services annually. On top of that, millions of lives gone wasted due to unlicensed medical operations and faulty healthcare services provided by medical fraudsters.
While the facts have led you to wonder and doubt, this article will help you to answer the most common questions about reporting Medicare Fraud and what a medicare whistleblower can do.
What is Healthcare Fraud?
Health care fraud is a criminal act of submitting a false claim, making a misrepresentation of fact, and obtaining payment from a government health insurance program. The persons who usually commit healthcare fraud are physicians, home health agencies, medical representatives, surgeons, or even established healthcare organizations.
A medical fraudster intends to obtain your finances or your confidential data, including your healthcare insurance, medical information, prior medical history, and hospital billings.
What are Examples of Healthcare Fraud?
Medical Fraud is a critical issue that you should not overlook. Simply because you haven’t yet experienced being a victim doesn’t mean you prevent finding the suspect. Since medical fraud has different faces, you could be the next potential victim. Hence, here are some examples of healthcare fraud:
Medical Billing Fraud
Under the Medical Billing Fraud are upcoding, unbundling, and billing for services not provided. As a general overview, a fraudster violates the False Claims Act when a medicare whistleblower exposes his intent against the government.
Upcoding takes place when a healthcare provider sends a bill to Medicare that contains pieces of information, exaggerating the time, procedures, the staff, and materials involved to pay for a higher rate.
Upcoding is another type of medical billing fraud which provides a hyperbole of information, particularly on procedural codes. In this type of healthcare fraud, a healthcare provider submits multiple groups of procedural services, billing for a higher price. However, a patient doesn’t know that the procedural service provided amounts to a single group with a lesser bill.
Billing for Services Not Provided
As the name implies, a healthcare provider adds irrelevant and unfounded information to your bill than the actual services provided. This type of healthcare fraud has a similar fashion with Upcoding. However, the government could pay for healthcare services, supplies, or equipment that were not delivered or performed.
Billing Unnecessary Medical Services
Similar to Billing for Services Not Provided, this type of medical fraud involves unlawful kickbacks, providing services to patients that the latter won’t need. Also, billing unnecessary medical services can manifest when a healthcare provider, at the precise moment of pricing, alters or changes particular provisions of healthcare policy without regard to applicable criteria.
Billing for unlicensed personnel
This type of healthcare fraud involves the practice and operation of unlicensed individuals who have no proper training and skills. In the worst-case scenario, they claim for a legitimate and expressed medical certification with fraud medical supervision. As a result, a lot of patients have experienced the worsening of their illness, leading to expiration.
Defective products and manufacturing violations
Fraudsters have different schemes to defraud patients, and one of the ways is to incite fear, provide sensationalized solutions, and sell unapproved and illegal products in the market. Under this type of healthcare fraud are off-label marketing, illegal drug-switching, selling unnecessary durable medical equipment and supplies (DME).
More often, fraudsters and healthcare providers involve manufacturers in releasing products for public use and consumption. They falsify and forge a physician’s medical necessity determination, and bill the government-funded healthcare services for such manipulation.
What Are Some Cases of Healthcare Fraud?
To advance your knowledge, here are some recent and litigated cases that involve healthcare fraud:
(1) Court Orders a Utah County Man Halt to Sale of Silver Product Fraudulently Touted as COVID-19 Cure
In a press release, the Department of Justice (DOJ) suggested that a silver product as COVID-19 cure was a fraud sale. The Food and Drug Administration has expressed that any practices are in-line with safety standards and drug regulation to all COVID-related products and services.
In this case, a temporary restraining order (TRO) halted the operations of defendants Gordon Pedersen of Cedar Hills, Utah, and his companies, My Doctor Suggests LLC and GP silver, for fraudulently selling and promoting silver products for COVID-19 treatment.
The civil complaint reveals that defendants have promoted silver products as a cure for coronavirus, explaining that the silver components will flow into the human’s bloodstream. Allegedly, an “Alkaline Structured Silver” will destroy all forms of viruses, usher out the coronavirus, and will attach into human cells, “preventing disease totally and completely.”
(2) Encompass Health Agrees to Pay $48 Million to Resolve False Claims Act Allegation Relating to its Inpatient Rehabilitation Facilities
Encompass Health Corporation (formerly known as HealthSouth Corporation), the nation’s largest operator of inpatient rehabilitation facilities (IRFs), violated the False Claims Act by fraudulently misrepresenting the proper classification and diagnosis of an IRF patient.
In this case, the DOJ found that some Encompass IRFs falsely diagnosed patients with “disuse myopathy” when there was no clinical evidence to prove. Also, Encompass IRFs allegedly admitted patients unnecessary for medical services since they were not eligible for admission to an IRF.
A medicare whistleblower named Dr. Emese Simon, a former contract physician at an Encompass IRF in Sarasota, Floria, and other whistleblowers, have raised three lawsuits under the qui tam provisions of False Claims Act. Hence, as a verdict, Encompass Health agrees to pay 48 million dollars, awarding a collective share of 12.4 million dollars to the whistleblowers.
(3) Georgia Woman Arrested for Role in Scheme to Defraud Health Care Benefit Programs Related to Cancer Genetic Testing and COVID-19 Testing
Last May 15, the DOJ’s Criminal Division arrested Ashely Hoober Paris, 32, of Lawrenceville, Georgia, for the complaint of conspiracy to violate the Anti-Kickback Statute, and to commit health care fraud.
In this case, the complaint allegedly reveals that from October 2019 until the present, Hoobler was involved in soliciting and receiving kickback payments from the owners and operators of a diagnostic testing laboratory in exchange for referring Medicare beneficiaries for cancer genetic testing (CGX testing). Her co-conspirator would obtain doctors’ orders by paying illegal kickbacks to co-conspirators at telemedicine companies. The owners and operators then submitted false and fraudulent claims for Medicare, paying Hoobler a percentage as kickbacks.
On the other hand, Hoobler agreed with the same laboratory owners and operators for kickback payments on a per-test basis for COVID-19 tests. From February 2020, they have been willing to pay Hoobler for illegal kickbacks in exchange for completed COVID-19 and Respiratory Pathogen Panel (RPP) tests, reimbursing at a higher rate than the usual COVID-19 tests.
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What Are Some Laws Penalizing Medicare Fraud?
There are existing civil and criminal laws safeguarding your privileges as a Medicare beneficiary. Having these Medicare laws make your future be secured. That’s why you need to familiarize these laws for yourself and future endeavors.
Civil laws are laws that define and protect the private rights of citizens, offering legal remedies sought in a dispute, including torts and damages in healthcare transactions. Hence, the essence of civil laws is the preponderance of evidence for a civil case to succeed.
The DOJ utilizes the False Claims Act and Stark Law for civil penalties.
The False Claims Act
The False Claims Act (FCA), or better known as a Lincoln Law, is a federal law that criminalizes any health care organization or health care service provider, suspected to commit reckless ignorance, in making a false record, or filing a false claim to any healthcare programs funded by the U.S. government.
It empowers a private citizen to become a medicare whistleblower or a “relator,” bringing a case on behalf of the government.
The FCA strongly penalizes healthcare fraud schemes, such as Upcoding, Unbundling, Billing for Unnecessary Medical Services, and Billing for Services Not Provided.
The Stark Law
The Stark law or the “Physician Referral Law” is an exclusive set of civil enforcement statutes that seek to ban physicians’ referrals to a patient covered by Medicare or any state-sponsored costs for designated healthcare services (DHS) only.
Designated Healthcare Service covers any medical practices such as performing laboratory tests, prescribing medical drugs, and conducting physical therapy to all patients.
As a general rule, violators of the Stark Law requires them to refund any payments received as a result of the referral. However, to avoid civil liabilities, there are existing exceptions that the law provides.
Criminal law is that branch or division of law that punishes crimes, treats of their nature, and provides for their punishment. In healthcare fraud, the government penalizes violators by determining the level of intent. Otherwise stated, when convicted as guilty beyond a reasonable doubt, a violator will suffer to a service of penalties and payment of fines.
The DOJ enforces the Anti-Kickback Statute (AKS) and the Criminal Healthcare Fraud statute for criminal penalties.
Anti-Kickback Statute (AKS)
The Anti-Kickback Statute inhibits the exchange of remuneration to anything of value, to induce referrals, of Medicare and Medicaid business.
How does the Anti-Kickback Statute differ from the Stark Law?
By nature, the Anti-Kickback Statute carries both civil and criminal penalties, where it applies to any Medicare and any federal health program. Since it is a criminal law, it highly requires the intent of a violator. While the Stark Law involves the element of referral relationship between a physician and an entity, the Anti-Kickback Statute applies to any referral sources.
When convicted with Anti-Kickback Statute, a violator will serve a five-year imprisonment, pays fines up to $25,000, and excludes from the Medicare and Medicaid programs for at least five years.
Criminal Healthcare Fraud Statute
Under the U.S. Code, any person who intentionally commits to defraud any healthcare benefit programs, or to use fraud and false statements to obtain funds held by a federal healthcare program, shall face up to 10 years in prison and shall pay a fine up to 500,000 dollars, or twice the amount of the fraud.
How Do I Become a Medicare Whistleblower?
You don’t need to have professional skills to become a medicare whistleblower. Anyone can be a potential whistleblower, including yourself.
According to the National Whistleblower Center, a medicare whistleblower is a person-in-interest who reports any person involved in fraudulent activities, abuse, corruption, or inimical acts contrary to the public health and safety.
As a general rule, you need to disclose the information in good faith – that you didn’t involve in the fraudulent process, and you are innocent.
Hence, you may report a fraudulent incident in three ways:
(1) Report to external organizations such as media outlets and enforcement agencies;
(2) Report to the other party within the organization; or
(3) Report the fraudulent activities by posting it directly on the Internet.
However, you should take note that there are due processes to follow, such as the qualification of a whistleblower’s claim, and the type of lawsuit to file.
What Are the Elements to Qualify for a Whistleblower’s Claim?
Under the False Claims Act (FCA), there are certain elements to qualify for a whistleblower’s claim:
1st. You need to have a proven knowledge of the fraud activity.
Hearsay or gossip won’t matter in the face of the law. Meaning, a medicare whistleblower should have direct and concrete knowledge on the fraudulent activity. The law requires that a whistleblower should present prima facie insights and proven facts. And here goes the second element: Evidence.
2nd. You need to present private and private sources as pieces of evidence.
There are different types of evidence in the face of the law. But the FCA law requires that a medicare whistleblower should have private and primary sources of evidence.
A primary source of evidence is immediate, first-hand accounts who had a direct connection to a person involved. That’s why public evidence won’t prosper since it defies the purpose of whistleblowing.
3rd. You need to prove that the defendant’s fraud inducement involves his knowledge and will.
Since the intent and the knowledge matter in a qui tam lawsuit, a medicare whistleblower should ascertain that the defendant accomplished a fraudulent activity in bad faith, which causes torts and damages.
4th. You need to file the qui tam lawsuit within six years after the discovery of fraud.
The FCA has provided a statutory limitation of six years for qui tam lawsuits. The law assumes that you have directly reported the fraudulent activity to a law enforcement agency or the government after you knew of such a fraudulent incident.
As a general rule, if you file the qui tam lawsuit beyond the prescription period, then your legal purpose won’t prosper.
Is there legal protection for whistleblowers against retaliation?
Yes. There is legal protection for whistleblowers under the False Claims Act.
The anti-retaliation provisions of the False Claims Act protects employees, contractors, or other agents of a company from being “discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer.”
Furthermore, the case law has taken an expansive view of the persons protected under the False Claims Act, including partners, and physicians with staff privileges at a hospital.
To establish retaliation under the False Claims Act, a whistleblower must show that:
(1) he or she engaged in protected activity;
(2) that the employer engaged in an adverse employment action against the whistleblower; and
(3) the adverse employment action was because of the protected activity.
How can a whistleblower file for a qui tam lawsuit?
Qui tam lawsuits are powerful legal remedies for private whistleblowers to eradicate and punish any kind of fraud and to recover money for the U.S. Treasury and American taxpayers.
Before filing for a qui tam lawsuit, make sure that you follow this criteria set by FCA law:
(1) There is a significant amount of money at stake;
(2) You have documents based on the preponderance of the evidence that convinces the fraudulent activities;
(3) You have a first-hand knowledge of the fraudulent activities; and
(4) Your qui tam claim squares within the FCA’s statute of limitations.
Furthermore, there are four steps in filing a qui tam lawsuit:
1st. You need to find a fraud attorney.
Qui tam lawsuits involve complex legal matters. Hence, you need a medicare fraud attorney that guides you to advance the case and simplify the process.
Blog Article: 5 Benefits of Hiring a Medical Fraud Lawyer
2nd. You need to submit the facts of the case to the government.
In qui tam lawsuits, the government has the authority to represent on behalf of your case. As you submit the facts of the case, they will decide whether to decline or proceed with the case intervention.
If the government decides not to intervene, it means that they have a lack of resources to support the case, or the case didn’t merit any financial threshold. Still, you can advance your case without any government intervention.
3rd. You need to provide a disclosure statement.
Under Sec.3730, par. (b)(2) of the False Claims Act, a medicare whistleblower must provide a “written disclosure of substantially all material evidence and information” possessed.
The disclosure statement essentially functions as your waiver to allow the government to investigate the merits of your case, especially the sources of evidence you provide.
4th. You need to file the qui tam lawsuit under seal.
Filing a suit under seal means that the government has an opportunity to intervene, to dismiss, or to settle the case with the defendant before any formal investigation for sixty days.
Hence, failure to comply with the seal requirements can result in irreversible damage to parties under the court’s decision. The dismissal of the case is not automatic, especially if the error is curable. The dismissal depends on the statutory authority where courts must balance the following three factors:
(1) The scope of damages to the government;
(2) The nature of the violation; and
(3) The intent or the will involved to commit a violation.
What are the rewards of reporting Medical Fraud through Qui Tam lawsuits?
As previously mentioned, the government has the authority to intervene in your qui tam lawsuit.
The FCA provides that if the government has intervened in a recovery case, you can obtain 15% to 25% of the recovery, depending upon your efforts on substantially prosecuting the action.
However, if there is no government intervention, you can solely obtain a 25% to 30% of the recovery.
What are the remedies or damages can a whistleblower recover under the False Claims Act?
Under the anti-retaliation provision of the False Claims Act, a medicare whistleblower who wins the case may recover:
(2) double back pay, plus interest
(3) special damages, which include litigation costs, reasonable attorney’s fees, lost future earnings, emotional distress, and punitive damages.
In the case of Medicare Fraud, where can I ask for legal assistance?
Thinking about the complex and hustle legal process of winning a Medical Fraud case? That’s a great idea!
In Khouri Law, your legal protection and your safety is our guarantee. Our whistleblower attorneys have proven experiences in representing doctors, physicians, and employees in qui tam lawsuits. We have won in numerous cases, and it’s time to win yours.
For more than 20 years in an aggressive yet intelligent strategy in prosecuting healthcare fraud, we assure the protection of your company in fraud claims, securing your financial interests.
Contact our medicare fraud attorneys right away!
The issue of Medicare Fraud is collective and communal. When there is still an existing healthcare fraud incident, then there is a chance that you’ll be the next potential victim.
As you have enriched your legal knowledge through the questions asked, Khouri Law looks forward to your strength, bravery, and confidence in blowing issues and exposing healthcare fraud.
Now that the government is pushing for quality healthcare programs, it is your implied duty and obligation to be watchdogs against fraudsters through healthcare fraud laws.
It’s not too late to report a healthcare fraud incident. Contact us now!