Most False Claims Act cases are brought by whistleblowers who can receive up to 30% of the government’s recovery in a successful investigation under the act.
“They have broadened the scope of the False Claims Act and anti-kickback statute, so we’re starting to see more and more of these cases being brought forward,” says Robert W. Liles, JD, MS, MBA, managing partner with Liles Parker in Washington, DC.
Always Report Overpayments
The ACA contains changes to the anti-kickback statute and the False Claims Act, including making it a violation if a healthcare organization receives an overpayment that is not reported, and the money returned, within 60 days.
The final rule, published in 2016, eased the 60-day timeline by saying that the clock starts once an organization investigates the overpayment and assesses the extent of the problem and amount owed, Liles says.
“The purpose of that is if you have a situation where you realize you’ve been doing something wrong, you can go back six years, figure out how much money you owe, and then you pay it back,” Liles says.
Anyone Can Be a Whistleblower
Some recent examples of ASCs that ran afoul of the False Claims Act include the case of a company that employed a managing surgeon who performed unnecessary procedures on patients and also billed for services not rendered, Liles says.
“Two whistleblowers filed under the False Claims Act against the ASC,” he adds. “The government got $4 million, and the whistleblowers got $900,000.”
ASCs must stay on top of any overpayments and problems to avoid this type of situation.
“Say you know about overpayments and you don’t report it and return it within 60 days,” Liles says. “I can guarantee that you’re not the only one in your organization who knows about the problem.”
Anyone in an organization who knows about services and billing is a potential whistleblower, he adds.
“You’re supposed to have compliance policies and training, auditing, and monitoring,” Liles notes. “Do a gap analysis of what you’re doing right and what you need to do to fix your problems.”
In another False Claims Act case, an ASC operator sold a minority interest to physicians at less than fair market value. It was a disguised kickback, and the government pursued it under the False Claims Act. The ASC paid $5.1 million, Liles says.
Private Payers Are Not Immune
There is one other aspect of False Claims Act violations: If the federal government goes after an organization, private payers soon could follow.
“They follow in the wake of what the federal government is doing,” Liles says. “When I was with the [DOJ], I never saw a case where someone was only ripping off Medicare. If they were doing something wrong, they were doing it across the board.”
The best practice and policy is to prevent these problems from occurring by assessing the ASC’s compliance with billing and coding best practices.
“So many providers don’t want to take this step because it’s like they’re putting their blinders on,” Liles says. “But don’t you want to find out now vs. letting it get worse and owing more money later? Sit down, and do a gap analysis.”
Other best practice strategies include ensuring the ASC’s compliance plan is in place and training staff to comply.
“The government doesn’t expect you to be perfect,” Liles says. “But they do expect you to try, and if you make a mistake, they want you to put systems in place to make sure it doesn’t happen again.”