Amino testing measures the levels of certain amino acids in the blood. Typically, this testing is performed on infants who are suspected of having an issue metabolizing certain amino acids. While amino testing can be important to diagnoses certain issues in young children, the federal government has begun cracking down on Medicare fraud claims related to these tests.
Recently, The Department of Health and Human Services Office of Inspector General (HHS-OIG) announced its efforts to target genetic testing fraud schemes nationwide. Amino testing is among the tests being targeted. According to the HHS-OIG, it has already brought cases against 35 individuals, alleging a total of nearly $2.1 in fraudulent billing.
How Amino Testing “Scams” Work
The HHS-OIG has identified one particular way in which healthcare providers go about defrauding Medicare when ordering amino testing. According to the HHS-OIG, a “recruiter” seeks out a Medicare beneficiary and convinces them to take a genetic test. The recruiter then contacts a doctor on the patient’s behalf, getting them to approve the testing. This allows a lab to process the test and provide a result to the patient. The recruiter then pays a “referral” fee to the doctor and the lab bills Medicare for the testing. Medicare sends payment to the lab, which also shares a portion of the proceeds with the recruiter.
While this arrangement works well, in theory, for the doctor, the lab and certainly the recruiter, it also runs afoul of several federal statutes in the eyes of the HHS-OIG.
The Anti-Kickback Statute
The Anti-Kickback Statute (AKS)( 42 USC §1320a–7b) is a federal law prohibiting a medical provider from offering, paying, soliciting, or receiving money or anything else of value in exchange for patient referrals. The AKS applies when any federally funded program pays the patient’s medical bills. While many cases involving alleged violations of the AKS involve a provider paying cash for referrals, the statute covers other types of kickbacks, including expensive meals, hotel stays or vacations, positions of employment. The AKS is criminal in nature, and a violation may result in incarceration and other criminal sanctions. Additionally, anyone who violates the AKS can also face civil liability.
The Stark Law
The Stark Law is contained in 42 USC § 1395nn. The Stark Law is similar to the Anti-Kickback Statute in that it places a limit on physician referrals. Specifically, the Stark Law prohibits providers from referring patients to another provider when the referring provider has a financial interest in the referee’s business or organization. The Stark Law is unique in that it is a strict liability statute. This means federal prosecutors do not need to show that a provider knew about or intended to violate the law. In this way, a referring physician’s intent is irrelevant. Stark Law violations can also result in civil liability under the False Claims Act.
Under federal law, both the party making a referral and the one receiving the referral can face civil or criminal liability. Thus, providers are urged to exercise caution when approached by recruiters offering to provide patients who need or want testing in exchange for a referral fee.
However, referral fees are common practice in the medical industry, and not all arrangements are prohibited. Practitioners with questions about the propriety of a referral arrangement should reach out to a dedicated federal healthcare compliance law firm for immediate assistance.
Contact Oberheiden, P.C. to Speak with an Experienced Medicare Fraud Lawyer Today
At Oberheiden, P.C., we believe that clients facing Medicare fraud should not be put in the position to explain how their industry or practice works. Thus, all of our Medicare fraud defense attorneys command an impressive knowledge of all aspects of the healthcare industry. In fact, many of our attorneys previously prosecuted Medicare fraud cases on behalf of the government. Oberheiden, P.C. has a track record of successfully representing healthcare practitioners, practice groups, hospitals, laboratories, pharmacies, and many other healthcare-related organizations. Our committed team of federal healthcare fraud lawyers has effectively handled all types of investigations, including those involving the False Claims Act, CMS exclusion, Stark Law, Anti-Kickback Statute, Medicare fraud, Medicaid fraud, Tricare fraud, and DOL investigations.
Contact our experience team today.
Dr. Nick Oberheiden is a national litigation and trial criminal defense attorney who practices exclusively in the area of federal law.