The government spends several hundred billion dollars a year on healthcare so they care a great deal about any fraud related to healthcare. Unfortunately, there is still a fair amount of fraudulent activity ranging from individual medical practices ordering unnecessary tests and procedures to up-coding or billing particular services that were never actually provided.
Healthcare fraud can also include whether drug companies are illegally marketing their drugs or whether a medical device company is illegally marketing medical devices. There is a wide range of things that are considered fraud within the healthcare industry.
People may pay a kickback to someone to get them to refer to business, or they can receive a kickback and play along with the scheme and do the business. This law applies not just to physicians, but all healthcare providers and institutions.
If you are unsure about whether your case involves healthcare fraud kickback schemes as defined by law, consult with a DC healthcare whistleblower attorney.
Kickback Schemes in the Healthcare Industry
Kickback schemes can work in healthcare almost any way someone could imagine because the Anti-Kickback statute says that the kickback does not have to be cash. Any inducement to a doctor, to a hospital, or to a medical provider to use a product or make can be considered illegal under the Anti-Kickback statute. It is a broad area of law, there is some case law that says any payment made if one reason for that payment was to induce some sort of illegal activity could create a kickback. Someone could have a payment that looks on the surface to be legitimate but may in fact not be.
If someone finds out evidence of a healthcare fraud kickback scheme, then it will be treated seriously. The reason is that one wants to go to the doctor and think they are getting medical advice, not business advice. If they advise one kind of surgery or a type of drug or procedure, it can all add up to a large amount of money and big business. Therefore, one wants these laws in place to keep their advice to us on a medical basis as opposed to a business basis.
Discovering Illegal Kickback Schemes
The minute the whistleblower discovers information regarding a kickback or a referral from a physician to an organization in which that physician has some kind of financial interest, it is a situation to look at carefully. Such cases tend to work very well under the False Claims Act theories. In addition to strong liability provisions, when there are kickbacks, the whistleblower or the government does not have to deal with issues regarding the effectiveness of the particular treatment. There is no need for expert testimony to see if the patient was mistreated per se or if the treatment was medically necessary. All of those issues are important areas and can give rise to liability on their own but they can also be harder to prove than a financial kickback relationship. Such a relationship is usually easy to see and commonly involves a systematic procedure between one entity and another or a physician and an entity that they can whistleblowers can track, that they can demonstrate and that they can make a relatively strong case involving many false claims.
Why are Kickbacks Illegal in Healthcare?
The reason that most people think that Congress enacted the Anti-Kickback Statute with respect to healthcare funds is that they want doctors to have independent judgment, a judgment based solely on their medical conditions and not based on any decisions with respect to business. They want to go to the doctor and want that doctor to understand their ailment and not to be making medical decisions because they get money back if they refer a patient to one ambulatory surgical center.
A person wants medical advice to be medical advice and not based on some compromising business arrangement from whoever the medical provider is with some other organization. That is why kickbacks are illegal and heavily prosecuted under current laws.
The basic idea behind these laws is that doctors and health care providers are supposed to provide healthcare services to patients based on their judgment of what the best healthcare is for the patient, and not have that judgment influenced by bribes.
There are many different ways that Medicare can be overbilled for services, which include an aspect of fraud. There have been cases where healthcare providers have simply billed for services they did not really provide. There have also been cases where healthcare providers billed for services that they provided but were not at all needed. There have even been cases of healthcare providers using their billing forms and marking the most complicated version of the service provided as opposed to the actual service that was provided, which is known as upcoding the bill.
Difference Between Reporting Fraud and Reporting Medical Malpractice
You can sue in court for negligence in a medical sense. A doctor may not have done the best job they should have or may not have done a job up to the standard of care that they are supposed to provide. That is a medical malpractice type of case.
Fraud against the government is a little bit different. It is not the question of the doctor or any healthcare provider really making a mistake. Rather, they have to be involved in some kind of a scheme that is designed to take money from the government that is not earned.
It also involves showing that the government was somehow paying for the services. If you went to the doctor and paid them money out of your own pocket, there really would not be a False Claims Act issue. It is a different kind of a determination as to the wrongful activity that gives someone the right to sue over healthcare fraud kickback schemes.
Someone should contact an experienced Stark Law or anti-kickback lawyer for all the usual reasons but of course, these laws are also complicated. Beyond the initial look that a physician is referring designated health services to an entity in which that physician has an interest, there is generally an additional review that needs to go on to see if there is any possible way that it could be legal. Usually, when it comes to the whistleblower, it is someone who has some familiarity with the Stark Law and understands why it is illegal. Being able to help the whistleblower understand the very difficult process involved in making such a case is part of the role of the lawyer