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Medical/Legal Q & A
MEDICARE FRAUD & ABUSE
by Dan Groszkruger, JD, MPH
Consulting Editor


Q. The hospital where I admit most of my patients must train all its staff members about "fraud & abuse," including information about "whistleblowers." What about "fraud & abuse" and "whistleblowers" should physicians know, whether or not they hold hospital privileges?

A. The Deficit Reduction Act ("DRA") requires that large hospitals must have detailed written policies to combat fraud and abuse, including an explanation of qui tam (or whistleblower) provisions in the federal law. Many of these policies directly impact physicians. The following summary of federal fraud and abuse laws briefly describes the three major categories of fraud, and the role of a whistleblower.

Anti-Kickback Law: Offering or accepting a kickback, whether in the form of money or other valuable consideration (e.g., free rent), in exchange for referring a patient to a provider for services to be paid for by Medicare or MediCal, is a crime. (42 U.S.C. § 1320a-7b[b]) However, there are several "safe harbors."

Stark (Physician Self-Referral Law): The federal physician self-referral statute prohibits a physician from ordering "designated health services" for Medicare or MediCal patients from entities with which the physician (or an immediate family member) has a "financial relationship." (42 U.S.C. § 1395nn).

False Claims Act: It is a felony to make a representation of fact, known to be false (or believed not to be true), with knowledge that making such a false representation could result in provision of unauthorized Medicare benefits. (18 U.S.C. § 287) Common violations include recording a false diagnosis, and misrepresenting the level of service actually provided ("up-coding").

Whistleblower: In addition to actions being initiated by the federal government, the statute authorizes "qui tam" actions to be brought on behalf of the federal government by a private person who has direct knowledge of the fraud. Under certain circumstances, the whistleblower may receive a share of the monetary penalty. The person most likely to become a whistleblower is your disgruntled former employee.



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