The False Claims Act (FCA) ‐ “The Signature Anti‐Fraud Weapon of the United States” The False Claims Act (FCA) ‐ “The Signature Anti‐Fraud Weapon of the United States” December 19, 2014 | Bonnie Bigler, www.medusabil.com Former U.S. Department of Health and Human Services (HHS) Inspector General Richard Kusserow reported that the Civil Division of the Department of Justice (DOJ) obtained $5.69 Billion in settlements and judgments involving fraud and false claims in 2014. Attorney Sean McKenna told FierceHealthPayer: AntiFraud in an exclusive interview that, “The False Claims Act (FCA) is the signature anti‐fraud weapon of the United States because of broad liability provisions that can lead to significant damage awards for any person or company doing business with the federal government.” The numbers reported by the DOJ supports his statement. According to the report, 40% of the $5.69 Billion obtained was from federal healthcare programs (mostly Medicare and Medicaid). The FCA has grown more powerful in recent years. According to Attorney Kusserow’s report, most false claims actions are filed under the “qui tam” (whistleblower) provisions. The “qui tam” provisions allow private citizens to bring claims on behalf of the federal government without fear of retaliation. Lawsuits filed by citizens — known as “qui tam” suits — are filed in secret to give the government an opportunity to investigate the allegations of fraud. According to Becker’s Hospital Report, a couple contributing factors to the FCA spike in cases are The prosecutors in the Department of Justice are now required to investigate FCA complaints more actively; The financial incentives provided to whistleblowers who file successful lawsuits; and The Patient Protection and Affordable Care Act (PPACA) made it a violation of the FCA for a healthcare organization to retain an overpayment for more than 60 days. Many law firms are “chasing the pot of gold” by focusing their practices on FCA complaints, while the government can reap an estimated 20‐to‐1 investment return in these cases. The whistleblower can pursue the allegations on their own and receive a share of the proceeds if successful. In the nearly $3 billion recoveries related to qui tam lawsuits, whistleblowers received $435 million in payouts. From January 2009 to the end of the fiscal year 2014, the government paid awards in excess of $2.47 billion. The FCA has become a common character in the healthcare arena, and due to a number of factors, hospital and health system executives and physicians need to be proactive to help ensure they do not become the target of an FCA investigation or prosecution. How can you help your company avoid becoming one of the statistics? Robust employee training and communication on compliance issues are key elements to an effective compliance program that may help a company avoid penalties. Self‐monitoring is a necessary task; Internal auditing‐ including proactive reviews of coding; and “…voluntary self‐ disclosure benefits both the integrity of healthcare programs and providers who discover and report evidence of improper billing in their organization,” said U.S. Attorney Richard S. Hartunian. Failure to report overpayments could subject providers to monetary penalties and treble damages. “You need to be identifying compliance risks and checking yourself on a regular basis,” attorney Kirk J. Nahra advised in a FierceHealthPayer eBook Payer Strategies to Prevent and Detect Fraud. In an interview with FierceHealthPayer, Nahra also advised to “Deal well with complaints. Most fraud cases are generated by whistleblowers. Research and anecdotal evidence show most whistleblowers brought problems to their companies’ attention and only became whistleblowers when problems weren’t fixed. So solving problems identified by whoever brings them forward is a good way to reduce the likelihood of an investigation.” Previous Next