Fraudulent medical billing is a common and costly problem for Medicare and state-sponsored health care programs. Over the past 20 years, combating health care fraud has been a top priority for the government.
Fraudulent Billing Schemes Explained
There are various ways in which fraudulent billing can occur. These can include:
- billing for services not rendered or products not delivered/add-on services;
- upcoding and unbundling/fragmentation;
- duplicate billing;
- split billing (billing for procedures over a period of days when all treatment occurred during one visit);
- submitting bills to Medicare that are the responsibility of other insurers under the Medicare secondary payor rule; and
- submitting false certifications and information.
Many of these fraudulent billing schemes result from use of improper Current Procedural Terminology (CPT) codes or the Health care Common Procedure Coding System (HCPCS) codes. There are also frequent problems with International Coding Diagnosis Codes (ICD-9 Codes), which are codes used by Medicare and Medicaid to numerically designate diagnoses, for patients covered under these plans. Oftentimes, the common cause of overpayments is simply confusion over which codes to use, without any intent to defraud.
Defending Against False Billing Charges
What may seem like fraudulent billing may only be an honest mistake by confused medical office staff. If you find yourself on the wrong end of a government investigation for fraudulent medical billing, you need the guidance of an experienced medical billing attorney.
Tips to Avoid Liability Under the False Claims Act
It’s hard to feel calm with a 10-year statute of limitations for filing a claim for false billing under the FCA. Who knows what mistakes may be lurking in your medical files? At this point, it may be impossible to fix past mistakes, but you can change how you operate in the future. Some key things to keep in mind for protecting yourself from a charge under the FCA include:
- Carefully choose billing contractors. You will be held liable for any mistakes or scams contractors run when they submit claims on your behalf.
- Aggressively supervise contractors and employees to ensure they are aware of and are following all government regulations regarding billing and claims.
- Create policies to reward whistleblowers for reporting wrongdoing in-house.
- Respond rapidly and appropriately once an offense is detected and act to prevent further wrongdoing.
Finally, if you find that you have received payments for charges that should not have been submitted, you may be criminally liable under 42 USC sec. 1320-7b(a)3 if you don’t report the error.
Penalties for Billing Fraud Charges
False Billing and the False Claims Act
The False Claims Act (FSA) is the government’s most effective weapon in fighting health care fraud. When a medical provider submits bills to a government agency that are not accurate, it is considered a false claim, which may be prosecuted under the FCA.
Individuals who are found to be submitting false claims to the government are liable to pay three times the amount of damages inflicted against the government, plus civil fines up to $11,000 for each fraudulent claim that is made. Ignorance is not necessarily a defense. Anyone who is found to have a reckless disregard for the truth or to be deliberately ignorant may be subject to this penalty.
A recent revision to the FCA, resulting from the Patient Protection and Affordable Care Act of 2010, includes incentives for whistleblowers in the medical field. Under the FCA, anyone who exposes fraud against the federal government is entitled to a percentage of the damages owed by the convicted party to the federal government.
False Claims and Medical Necessity
The government is increasingly using the FCA to challenge the medical necessity of services provided under Medicare. In these cases, while there is no dispute that the billings accurately reflect the services provided, the government is retrospectively determining that the services provided were not reasonable and necessary, and thus should not have been billed.
Because of these new tactics, it is important to bring in an experienced medical fraud attorney at the first sign of an investigation.
Government Investigations Into False Billing
The first sign of a government investigation into alleged false billing practices is usually a subpoena for documents. This is the best time to contact counsel in order to implement a litigation hold and to determine the government’s primary concerns. It is critical to respond promptly and completely to those concerns.
Once the provider has submitted all of the requested documents to the government entity, an investigation will ensue, which will likely include additional document production and witness interviews. Once complete, the government agency will meet with the provider to discuss its findings and concerns.
The provider under investigation will generally be given an opportunity to further investigate and respond to the government’s concerns. With the help of counsel, you have the best chance to influence the government’s view of the case at this time. A good attorney can mean the difference between an FCA charge and a negotiated settlement.
Trust the Experience of Former Federal Prosecutors and Experienced Defense Counsel
When your practice or business is on the line, you need to take decisive action to ensure that you are presenting the strongest possible defense. Our experienced criminal defense lawyers and two former federal prosecutors have years of experience helping clients obtain dismissal of Medicare and other health care fraud claims. If you are facing a federal investigation or federal charges, calling Oberheiden, P.C. can change your life.
To schedule a free, confidential consultation, call (888) 727-5154 and ask for Lynette or Nick directly, or you can contact us online today.
Dr. Nick Oberheiden is a national litigation and trial criminal defense attorney who practices exclusively in the area of federal law.