By Victoria Langley, 
There are many ways in which physicians, pharmacists, and other health care professionals can conduct health care fraud. One of most common forms of health care fraud is through filing false claims with a health care program or insurance policy to obtain a benefit, such as Medicare, Medicaid, or TRICARE. Most of the time, the false claims lead to greater reimbursements for a medical provider. Other forms of health care fraud include illegal kickbacks and financial relationships between health care professionals and businesses, which lead to an individual receiving an unlawful financial gain. When professionals are caught implementing health care fraud schemes, they can face civil and criminal consequences. A state or federal government may file a False Claims Act (FCA) suit against the professional.
If you are a health care professional facing allegations of false claims or kickbacks, you should immediately contact an attorney experienced in defending against FCA claims.
False claims
Under the federal FCA (many states have their own version), it is illegal to make false claims or to cause false claims to be made against government programs and agencies. The FCA covers all types of government programs, though health care is one of the most heavily targeted industries. In 2017, the U.S. Department of Justice (DOJ) obtained $3.7 billion in FCA settlements and verdicts. Of that recovery, $2.4 billion involved the health care industry.
“The interesting thing about the False Claims Act that makes it such a dangerous area for not only physicians but also pharmaceutical companies and the distributors is that it allows for triple damages and other financial penalties,” says Brad Honnold, a medical malpractice attorney and partner at Goza & Honnold. “The key to an offense or violation of the False Claims Act is anyone who knowingly submits or causes submission of a false or fraudulent claim payable by the US government or governmental entity.”
While patients can and do commit health care fraud, it also is an issue among providers, particularly when they obtain reimbursements through Medicare, Medicaid, and TRICARE. Physicians and health care facility owners can concoct various schemes in order to ask for more reimbursements than they are truly entitled to. They’re in the position to receive far greater compensation through health care fraud than most consumers.
Health care providers may commit fraud by filing false claims involving:
- services that were never provided;
- more expensive services than those provided (upcoding);
- services that were provided despite being medically unnecessary;
- incorrect diagnoses that allowed for an unnecessary procedure;
- prescription medications that were medically unnecessary;
- non-covered services claimed as covered services;
- each step of a procedure claimed separately (unbundling); and
- lies about who provided a service.
Illegal kickbacks and financial relationships
Health care professionals may commit fraud working within an illegal referral or kickback system. Under the federal Anti-Kickback Statute, physicians and other health care workers are not entitled to provide or receive a benefit for referrals. However, kickbacks often involve an individual receiving compensation or incentives for ensuring a health care professional obtains additional clients, which in turn leads to greater reimbursements. Illegal kickback schemes can occur between all types of professionals, including physicians, pharmacists, drug company representatives, insurance company employees, and other health care facility employers.
Another common type of kickback scheme is for doctors to receive financial incentives from drug reps for prescribing certain types of medications, even if that drug is not appropriate for the patient. This was the situation in a case unsealed in March 2018. Five physicians were charged with participating in a kickback and bribery scheme in which they prescribed patients a spray form of Fentanyl, a highly addictive opioid painkiller, in return for receiving higher “speaking fees” from the drug manufacturer, Insys Therapeutics. The speaking fees were for alleged educational presentations, which turned out to be casual meetings at restaurants.
Health care fraud schemes may also violate the federal Stark Law, which states physicians cannot refer Medicare patients to receive medical services at a facility where the physician, or an immediate family member, has a financial relationship. This means physicians cannot refer Medicare patients to facilities that they partially own as it would be a conflict of interest.
Violating the Anti-Kickback Statute can lead to both criminal and civil consequences, including fines and imprisonment while violating Stark Law leads to only civil consequences under the FCA and fines. If you are accused of participating in an illegal kickback or self-referral scheme, contact an experienced and skilled defense lawyer right away.
The DOJ is rooting out health care fraud
The DOJ takes finding and stopping health care fraud very seriously. In July 2017, the DOJ announced charges against 412 individuals, who had caused $1.3 billion in false claims. It was the largest health care fraud enforcement action to date, and it was a sign of what was to come. In June 2018, the department announced another major health care fraud takedown, which included charges against 601 defendants who are allegedly involved in more than $2 billion of losses to the government. “There have been enforcement health care fraud actions directed by the government against physicians, nurses, nurse practitioners, and pharmacists, not only alleging fraud but seeking to take action against those individuals’ right to participate in the Medicare program,” Honnold says.
If you are a health care professional and are facing accusations regarding false claims, kickbacks, bribery, or self-referrals, you should speak with an attorney. If there has been a misunderstanding or mistake, a lawyer can help you rectify the situation. If the government pursues a civil or criminal case, a lawyer will vigorously defend you and strive to mitigate any consequences of a conviction.
