The Medicare and Medicaid systems have very strict rules as to how claims are to be filed which if violated may have serious criminal and/or civil consequences. In many instances this complicated scheme of regulations may not have been violated intentionally. Nonetheless, because of the numerous types of potential Medicare and Medicaid fraud that may be charged and the vigilance of health care fraud investigators, there are occasions when unintentional mistakes are misconstrued as intentional fraud. Avoiding or reducing the consequences of health care fraud investigations requires the assistance of experienced, competent counsel.
Types of Medicare and Medicaid Schemes
There are several types of Medicare and Medicaid fraud statutes that may be implicated by fraudulent activity in connection with these programs.They are:
- The Anti-Kickback Statute – 42 USC 1320a-7b(b) prohibits the offering, soliciting, paying, or receiving of any incentive in exchange for health care referrals. The penalties are up to $25,000 and up to five years in prison. Civilly, there is the potential for up to a $50,000 civil monetary penalty (CMP) per violation and up to three times the kickback amount can be assessed.
- Stark Law – 42 USC § 1395nn which defines the Stark Law, prohibits a doctor from referring Medicare patients for certain health services to anyone in which the doctor has a financial relationship. The referrals may be from a physician for designated health services. The penalties are civil, so there is a refund obligation for overpayment, program exclusion, a possible $15,000 CMP for each service, and up to three times the claim amount can be assessed.
- False Claims Act – The False Claims Act, also known as 31 USC § 3729-3733, has been in place since 1863. If a submitted Medicare or Medicaid claim is deemed to be inaccurate, the federal government will initiate an investigation into such billing practices. Civil penalties range from $5,500 and $11,000 and possibly triple the harm caused to the government. If a person self- reports, it is possible to obtain a reduced penalty of double rather than triple the harm to the government.
- Fraudulent certification – This primarily applies to the hospice and home health care industries. Certification errors can occur in the hospice industry, but fraudulent home health care certification will result in serious criminal and/or civil penalties.
- Prescription Fraud – Prescription fraud either by a health care provider or other individual can result in serious penalties as well. It includes over prescribing by physicians particularly with opioids or forged prescription submitted by individuals. Such conduct may also implicate insurance fraud statutes, as well as violate of DEA dispensing rules.
The Role of Criminal Intent
Among the keys to defending against claims of Medicare and Medicaid fraud is arguing the lack of criminal intent. As noted above, honest mistakes may often trigger an investigation. The government has to have proof of criminal intent in order to charge someone with a crime. Thus it is critical to retain an experienced attorney such as Richard S. Berne to evaluate the circumstances surrounding your case and to demonstrate to the government that its investigation of your conduct is unwarranted.