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The regulations prohibiting healthcare fraud are both specific and complex. If you are charged with a healthcare fraud violation, your conduct may be punishable under a number of different federal statutes.
The broadest statute prohibiting health care fraud is 42 U.S.C. §1347, which punishes by fine and/or up to 10 years in prison the knowing and willful execution of a scheme to defraud a health care benefit program, or obtain by fraudulent pretenses, representations or promises, any money owned by or under the control of any health care benefit program. Even if your conduct does not rise to this level, it may be punishable by fine and/or up to five years imprisonment under one of the following federal statutes.
The False Claims Act
When a health professional bills for services that are either unnecessary or not delivered (and does so because they want to submit a bill to the insurance company) this triggers the False Claims Act. This act covers some of the most common healthcare fraud violations, including:
Billing for unnecessary services
The specific statutory language reads: “Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be subject to a fine in the amount provided in this title.”
It is important to note that the statement does not need to be made directly to the federal government to be prohibited under the False Claims Act. Submitting a false statement to a state agency or an insurance company that is later submitted to the government is sufficient to constitute a violation of the act. An example of a False Claims Act violation would be where a doctor orders lab tests that the patient does not actually need and bills Medicaid. Although medical discretion can make this kind of abuse difficult to detect, violations are severely penalized.
The False Statements Act
Similar to the False Claims Act, the False Statements Act applies to communications to the government containing false statements, representations, writings, or documents, or that falsify or cover up a material fact. Under this statute, this might apply where a healthcare provider submits a bill for a lab test that never occurred. The False Statements Act also applies when a healthcare provider claims a diagnosis of an illness the patient does not actually have.
The elements of a False Statements Act also differ somewhat from an False Claims Act violation because the prosecution must prove that the statement directly or indirectly submitted to the federal government was false, that the defendant intentionally submitted the statement with knowledge of its falsity and that the statement was material to the business of the government agency or department.
The Social Securities Act
This federal statute also criminalizes a variety of healthcare fraud violations. Under provision 42 U.S.C. S1320a-7b(a) you can be charged if you make false statements regarding services covered by a federal healthcare program. The statute defines “federal healthcare program” as any state health care program receiving federal funds, such as Medicaid, and false statements as those made in connection with services covered by said type of program or in an application for benefit or payment under these types of programs.
Whether you are a general physician receiving compensation from the pediatrician you refer your patients to, or a plastic surgeon accepting sporting event tickets from a pharmaceutical company in exchange for giving out samples of its new product, it is generally illegal to receive reimbursement for the referral of products or services in the healthcare industry.
Notably, sections 42 U.S.C. 132Oa-7b(b) of the Social Security Act essentially prohibits any such exchange so long as it happens knowingly and willfully. Unlike the statutes discussed above, which involve knowing and willful submission of false information, the anti-kickback statute can more easily be violated because many healthcare providers knowingly engage in this kind of conduct without recognizing it’s illegal. There are some “safe harbor” regulations that exempt certain kinds of kickbacks. This includes payments made for health practitioner recruitment purposes, disbursements for space or equipment rentals, or referrals made through a service agreement.
Where some anti-kickback violations are accidental, others are part of a more deliberate scheme involving conduct prohibited by the False Claims Act. The reason is that healthcare providers receiving kickbacks might be incentivized to refer patients for unnecessary tests administered by outside facilities or to prescribe needless medications so they can receive benefits from those organizations.
The Social Security Act also prohibits false statements regarding the condition or operation of healthcare facilities. This includes illegal patient admittance and retention practices. Falsely claiming a facility meets the requirements of a hospital or overcharging a patient would both be punishable under the anti-kickback statutes.
If you have been charged with or are being investigated for healthcare fraud, consult with a criminal defense attorney at Birrell Criminal Defense as soon as possible. We can help prevent you from being lured into providing information that ends up hurting your chances of acquittal in the long run. Contact us to speak privately about your situation, the charges you may be facing and how we can help fight aggressively on your behalf to protect your business, your reputation and your freedom.
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