MDNews - San Antonio

THE FALSE CL AIMS ACT 1 (FCA) IS A FEDERAL STATUTE THAT ALLOWS PRIVATE CITIZENS TO SUE THOSE WHO KNOWINGLY SUBMIT OR PERMIT THE SUBMISSION OF A FALSE OR FRAUDULENT CL AIM TO A FEDERAL PAYER PROGRAM. THE FCA INCLUDES A LEGAL DEVICE CALLED A "QUI TAM" (PRONOUNCED "KEE TAM") PROVISION. THE TERM ORIGINATES FROM A L ATIN PHRASE MEANING "HE WHO BRINGS A CASE ON BEHALF OF THE KING, AS WELL AS FOR HIMSELF." WHAT IS MOST unusual is that the qui tam provision of the FCA allows a private person, known as a relator, who has knowledge of fraud against the government to bring a lawsuit on behalf of the United States. Essentially, the qui tam provision encourages a relator to come forward with information about a company, an organization or an individual defrauding a federally funded government program. It is unusual because the relator is a third party who has not been directly harmed. The Act provides for a penalty from $5,500 to $11,000 per claim and up to three times the amount of the government's damages. The relator can collect between 15 to 25 percent of the amount recovered by the government, plus legal fees and expenses. Additionally, the FCA provides protection to employees who report a violation under the FCA from harassment, discrimina- tion, suspension or termination of employment resulting from the reporting of possible fraud. Employees who report fraud and consequently suffer retaliation may be awarded (1) two times back pay plus interest, (2) reinstatement to their position with no loss of seniority, and (3) payment for any costs or damages they incurred. Examples of fraudulent conduct under the FCA have included: + Billing for services or procedures that were not provided + Double billing — charging more than once for the same goods or service + Up-coding — submitting a claim for more than the services that were provided + Unbundling — separating groups of procedures, normally per- formed together, to gain a higher reimbursement rate + Billing for non-FDA approved drugs or services + Billing for brand drugs when generic drugs were provided + Billing for unlicensed or unapproved drugs + Prescribing drugs for non-FDA approved uses + Research grant fraud including falsifying grant applications and using grant money for other purposes. + Self-referral, improper financial interest and improper induce- ment (Stark and Anti-Kickback Statute) + Falsifying physician signatures when such signatures are required for reimbursement + False certification, or certifying all conditions for payment are proper when, in fact, they are not. A relator who files a qui tam lawsuit does so "under seal" for at least 60 days, which gives the Department of Justice time to investigate the claim. The government then decides whether it will join, or intervene, in the case. If the government intervenes, the DOJ assumes the lead role in prosecuting the case and the relator continues as a party to in the lawsuit. Even if the government does not intervene, the relator can pursue the case on behalf of the federal government. Healthcare providers should thoroughly understand the rules for claims submission. Qui tam claims are on the rise, and a well- managed compliance program is an essential core competency for physicians and physician groups. Next Month: The Escobar Case and False Certification E. Patrick Magallanes, MBA, MPA, CPPM, FACHE (Mar 2018) is CEO of Oncology San Antonio and a J.D. Candidate at St. Mary's School of Law. Keenly interested in health law subjects, Magallanes is the founding member of the St. Mary's School of Law Health Law Society. He is a student member of the American Health Lawyer Association and the San Antonio Bar Association Health Law Section and intends to practice corporate and health law. Magallanes can be reached at patrick.magallanes@gmail.com. n 1 31 U.S.C. § 3729 *Disclaimer: This information is provided for informational purposes only. It is not intended to provide legal advice. Please contact an attorney to obtain advice on any specific issue, question or problem. Qui Tam, or Whistleblower, Lawsuits under the False Claim Act BY E. PATRICK MAGALLANES 2 2❱❱❱❱❱ H E A LT H C A R E L A W U P D A T E

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