Healthcare Fraud Whistleblower Lawyer

There are many different kinds of fraud committed against the United States by companies and individuals who provide health care. There is so much government money involved in this area, and the unique relationship the government has with health care providers, as opposed to government contractors, makes this area of fraud both prevalent and often easier to prosecute than other government funded activities.

Unlike most contracting done with agencies, Government just pays for healthcare. There is no government official in the room approving the provision of a service or good. Therefore, when an unscrupulous provider commits fraud they do not have the confusion of a government official to hide behind. Nor do they have a government official to fool. The government relies on healthcare providers to tell the truth when they bill and of course most do. Most health care providers work to provide their services to help people and do so fairly.

Unfortunately, some healthcare service providers are unable to resist temptation. That is when the False Claims Act and whistleblowers becomes critical.  Despite the best efforts of government officials to catch fraud, a whistleblower on the inside is critical. Someone who has such information should contact a whistleblower lawyer and determine the extent of the fraud as well as to learn their rights.

Defrauding the Government Is Not Always Complicated

Defrauding the government can sometimes be as simple as using a higher code on a form. Health care bills are based codes and each code will correspond to the complexity of the service provided. Usually, the more complex the service provided, the more the reimbursement would be. The person doing the billing is required to use an appropriate code on a form. Of course, in most cases the patient doesn’t pay that much attention to the bill sent to Medicare. The patient may not know what the codes mean even if they did review the form ultimately submitted to the government.

Meanwhile, the government cannot be in the room with the patient to see what service was actually provided. The government relies on the service providers to state honestly what service was actually provided. Unfortunately, this can make it relatively simple for some unscrupulous billers to take money from the government. Using higher codes than the service really provided can create a False Claim, and we generally call this kind of a false claim “upcoding,” as a short way to describe this kind of false billing. It can be simple and easy and all too prevalent.

Why Would Someone Try to Defraud The Government in Healthcare?

There is nothing about being in the healthcare field that necessarily means that a person does not like money.

Companies are in business to provide medical devices or pharmaceuticals and of course most do so honorably. Most see their mission primarily as serving the public to provide care.  However, there is always pressure in any business, even in healthcare to make money. This is also a competitive and very profitable field. It can be all too easy to forget where we get Medicare funds and Medicaid funds in the first place. Whatever the motivation to commit fraud, the False Claims Act works to protect the public interest in these funds. In so doing it protects us all not only from the loss of funding but also quite often from unscrupulous providers who would abuse patient trust to make money.

When Fraud Prevails It Creates Disadvantages for Integrity

If fraud is allowed to prevail then we put the people who follow the rules at a disadvantage. A company down the street making a lot of money out of fraud  is in a financial and competitive advantage over another that works within the law. Don’t we want truthful companies to succeed? Is it alright if a competitor can lie about a medical device to make a profit and their competitor who does not gets squeezed?

Fraud can create large and additional sources of revenue. It disadvantages the honest providers of healthcare, the honest providers of medical technology. We have to ask which kind of companies and health care providers in this country we want to support. The False Claims Act helps fight fraud.  It’s a scandal that people want to depict this law as somehow anti-business. It is quite to the contrary pro honest business. There is nothing in the False Claims Act that prevents an honest health care provider or medical technology firm from making a legitimate and even a large profit.

Monitoring the Services Provided

The government can investigate claims of fraudulent activity, but there are of course privacy concerns regarding personal healthcare treatment. While the government pays for the healthcare, it doesn’t mean that they have the right to sit in the room with you and the doctor. Even reviewing the bills can be a huge task. Even the government can’t really monitor every healthcare transaction that occurs in the United States. Government programs pay for a large portion of it and they do so based on coding and documentation submitted by the healthcare providers. The government has a right to rely on that documentation.

There are coding procedures, which do help. There are some kinds of claims that are not allowed. Some kinds of fraud can be detected through the use of computer Algorithms applied to billing and coding in health care. However, by far the most successful way of catching fraud in health care is still through the active help of a whistleblower who can say what is really happening at a provider.

Accurate Billing Verification

Medicare and Medicaid and Tricare among other government programs work to create procedures appropriate to billing for health care. This part of the business can, of course, get extremely complicated. Anyone who has reviewed CMS manuals on line can attest to the complexity of the health care business. Usually, the average Medicare recipient is not aware of the extent of these issues. The consumer of healthcare becomes aware of  some of the complexity when they have to make a co-payment or when they find a service is not covered. While the complexity of the industry and regulations are often cited by those who would excuse fraud, it is not the source of such fraud. Fraud, is usually simple, even if the industry is complicated. Did somebody bill for something they did not do? Did somebody lie about what they billed?  If that occurred chances are that many additional regulations and laws were also violated. That can be the basis of a case under the False Claims Act.

Federal vs. State Medicare and Medicaid Fraud

There is a difference in jurisdiction over federal Medicare and state Medicaid funds. This is an issue regarding which government entity or entities provides the funds. The Federal False Claims Act covers fraud committed to obtain Medicare funds because the Federal government pays those funds. The Federal government maintains an interest in Medicaid funds as well of course, so some Medicaid funding can be recovered through the federal law.

However, individual states generally also provider Medicaid funds.  There are now quite a few states with their own False Claims Acts under which it is possible for a relator to sue and obtain a share if the state has been defrauded. It is also possible to consolidate the case that if the case involves a nationwide scheme.  If the facts of the case are appropriate to such an action it may be possible to file one case involving many states that have been affected with the federal government.

State by State FCA Laws

Under the Social Security Act Congress voted to incentivize States to enact False Claims Acts that met similar standards and provisions in it to the Federal False Claims Act when Medicaid programs are involved.  States got that message. There are now roughly 30 State False Claims Acts including the District of Columbia. Some of those laws allow a relator to file a case only for Medicaid funds, while other include broader range of claims.

Most of those laws are modeled on the Federal False Claims Act, but not all. Some are a little bit different than the Federal False Claims Act in important respects. Some are not even what we call true Qui Tam laws in the sense of allowing an individual plaintiff  to bring the case without the support of the government. Most of the laws are similar to the Federal False Claims Act law with some distinctions, that must be reviewed if someone is bringing a case in that jurisdiction.

Whistleblower Protection Under the Federal False Claims Act and Healthcare

For whistleblowers, there is a right to sue for retaliation under the Federal False Claims Act. It is the right to sue if, as a result of protesting fraud someone suffers retaliation. That right is in the False Claims Act under Section 3730(h). People sometimes call these H Claims or retaliation claims. The law provides for reinstatement damages, two times back pay, special damages.

This right can of course be important to a whistleblower. It does not, however, proactively protect somebody from retaliation. Proving retaliation under this law requires an additional analysis.  This is an important provision of the law. It, of course cannot make the act of blowing the whistle completely safe for everyone.  I wish it could.