You can be ‘Honest Abe’ and still fall short of the ‘Lincoln Law’ in regard to false claims act penalties
THE FALSE CLAIMS ACT (FCA), ALSO CALLED THE “LINCOLN LAW,” is an American federal law that imposes liability on persons and companies who defraud governmental programs. This law dates to March 2, 1863, and was enacted by President Abraham Lincoln as the federal government’s primary litigation tool in combating fraud.
The law includes a qui tam (whistleblower) provision which allows people who are not affiliated with the government, called “relators” under the law, to file actions on behalf of the government. Persons filing under the act stand to receive a portion of any recovered damages.
Whistleblowers
As of 2012, more than 70% of all federal government FCA actions were initiated by whistleblowers under the qui tam provisions. Claims under this law have typically involved health care, military or other government spending programs, and dominating the list are recoveries from the largest pharmaceutical company settlements. The government recovered $38.9 billion under the FCA between 1987-2013 and of this amount, $27.2 billion or 70% was from qui tam cases.
Each year these numbers continue to grow as more fraud, waste and abuse are brought to the forefront.
The FCA and health care
In essence, a false claim is any knowing claim or statement that is made for the purpose of defrauding another, or conspiring with another to do so. The False Claims Act (31 U.S. C. secs 3729-3733), or “Lincoln Law,” is a federal statute that imposes liability on those who attempt to defraud governmental programs. So, what does that mean to you as a health care provider?
The statement in Box 31 of the 1500 claim form reads: “Signature of physician or supplier including degrees or credentials (I certify that the statements on the reverse apply to the bill and are made a part thereof.)” Have you read the reverse side of this form? Not many have.
“In submitting this claim for payment of federal funds, I certify that:
- the information on the form is true, accurate and complete;
- I have familiarized myself with all applicable laws, regulations and program instructions, which are available from the Medicare contractor;
- I have provided or will provide sufficient information required to allow the government to make an informed eligibility and payment decision;
- this claim whether submitted by me or on my behalf by my designated billing company, complies with all applicable Medicare and/or Medicaid laws, regulations, and program instructions for payment including but not limited to the Federal anti-kickback statute and Physicians Self-Referral law (commonly known as Stark law);
- the services on this form were medically necessary and personally furnished by me or were furnished incident to my professional service by my employee under my direct supervision, except as otherwise expressly permitted by Medicare or Tricare;
- for each service rendered incident to my professional service, the identity (legal name and NPI, license # or SSN) of the primary individual rendering each service is reported in the designated section.
For services to be considered “incident to” a physician’s professional services:
- they must be rendered under the physician’s direct supervision by his/her employee;
- they must be an integral, although incidental part of a physician service;
- they must be of kinds commonly furnished in physician’s offices, and;
- the services of non-physicians must be included on the physician’s bills.”
This is summed up with: “The False Claims Act makes it illegal to submit false or fraudulent claims for payment to Medicare or Medicaid. Claims may be false if the service is not actually rendered to the patient, is provided but already covered under another claim, is miscoded, or is not supported by the medical record…For False Claims Act Violations, you can be fined up to three times the program’s loss, plus $11,000 per claim.”
Major insurance companies also use the same attestation. Claiming that you were not familiar “with all applicable laws, regulations and program instructions” is not a viable excuse. Between classes offered through state organizations, chiropractic colleges, webinars and private contractors, as well as being covered in all of our trade publications, there is no excuse.
Medical necessity
Medicare contractors are required to follow CMS policy instructions. In addition to the instructions found in our manuals, CMS and their contractors issue the following types of instructions:
“According to Medicare guidelines, National Coverage Determination (NCD): Medicare coverage is limited to items and services that are reasonable and necessary for the diagnosis or treatment of an illness or injury (and within the scope of a Medicare benefit category). The NCDs are developed by CMS to describe the circumstances for which Medicare will cover specific services, procedures, or technologies on a national basis. Medicare Contractors are required to follow NCDs. If an NCD does not specifically exclude/limit an indication or circumstance, or if the item or service is not mentioned at all in an NCD or in a Medicare manual, it is up to the Medicare contractor to make the coverage decision.”
Medical necessity is viewed as a best-practice factor and encompasses established standards. It is not based on the opinion of the treating physician. It is based on acceptable protocols and how well the documentation covers patients presenting complaints, history, assessment and treatment plans.
Having a “cash practice” does not absolve the practitioner from the False Claims Act. As patients submit to their insurance companies as well as health savings accounts, fees and services are questioned.
Bottom line — truth is the best policy. Be in accord with fact, reality and standards.
DIANE M. BARTON, DC, MCS-P, CIC, is with Medical Compliance Specialists, Ltd., in Homewood, Ill., and can be reached at 708-922-3911.