Frequently Asked Questions About Health Care Fraud Cases

Below is excerpted from an interview with Tony Munter, a False Claims Act lawyer in DC. He answers questions about health care fraud whistleblower cases.

What kind of conduct constitutes health care fraud?

Tony Munter: Health care fraud is huge. There is so much money in health care, and a lot of it is paid for by the government. The relationship between the government and health care providers is different than almost every other kind of contract. The government pays for health care but the government is not the consumer of the health care. It can make health care fraud under the False Claims Act easier to prove and easier to plead than other kinds of fraud. The government isn’t necessarily knowledgeable about the treatment provided other than what is represented in the bill that it receives. That provides all kinds of opportunities to defraud the government. For example, a patient goes into a hospital to get one kind of service and for some reason, that hospital decides to “up-code,” which means they charge for a more expensive, related service. The bill then goes to the government. The government doesn’t know that that isn’t the service that was provided, and the patient wasn’t paying for it because the government was paying for it. The patient doesn’t look over the bill with the type of microscope that we have to look at it with, doesn’t really know what’s going on with respect to the billing. There is a lot of potential for so-called “up-coding” of charging. That is a huge area of fraud. To charge something to the government under a health care program, there has to be some demonstration that it was medically necessary. There are a lot of charges for services that happen every year that aren’t medically necessary and that don’t meet that standard. If that happens on a systematic basis, a health care provider could find themselves on the wrong end of a False Claims Act suit for charging for services that are not medically necessary.

There have also been cases involving the false marketing of pharmaceuticals. There are regulations as to what you can market a pharmaceutical to do and what you can’t. If you lie about it, that’s a problem. There is also an issue with respect to referrals and kickbacks. There is an anti-kickback statute and there is also the Stark law that limits physician referrals. These laws are supposed to protect patients and the relationship between the doctor and the patient. You shouldn’t walk into the doctor’s office, get their advice, and then find out that their advice was based on some business relationship that the health care provider has with a medical device manufacturer or a pharmaceutical company. Those are regulated. Kickbacks don’t have to be in cash; they can take other forms as well. A lot of cases result from the potential for improper business relationships that health care providers have to get patients.

What are the challenges in representing a whistleblower case in health care fraud?

Tony Munter: The challenges relate to the fact that when you talk about fraud, usually there is some aspect of it that affects the health of the patients, and usually the person reporting it is very upset about that. It’s also stressful for both the attorney and the plaintiff to do what they have to do, which is to work with the government in secret. Once someone files one of these cases, they cannot talk to anyone except their attorney about it. They have done their job, they have reported it to the government, and the government’s job is to then act upon that information or to tell the person to sue on their own. It’s can be difficult to live with a secret like that. That adds to the usual challenges of figuring out exactly what kind of case it is. How it’s illegal, fraud, and other issues related to figuring out the case in general.