03/26/2014 (press release: KGWhistleblower) // Jeffrey Keller
Healthcare fraud is one of the fastest growing crimes in the United States. The surge is driven, in part, by the massive sums the federal and state governments pay to support medical care for this country’s old and infirm. In battling this fraud epidemic, the False Claims Act is the government’s primary weapon. Since it was significantly modified in the mid 1980s, the False Claims Act has led to the recovery of more than $34 billion in improperly obtained government payments, including Medicare and Medicaid fraud. The statute incentivizes those with knowledge of wrongdoing to speak out by awarding them a percentage of any recovery ultimately obtained. However, it is not the only law that may be violated in a scheme to defraud Medicare or Medicaid.
Congress enacted the federal Anti-Kickback Statute (“AKS”), 42 USC § 1320a-7b(b), and the federal Stark Statute (“Stark”), 42 USC § 1395nn, to ensure that decisions about federally-funded medical care are made on the basis of sound medical judgment and not on the basis of personal financial gain for those providing the care. Congress amended the language of the AKS in 2010 to make clear that claims submitted in violation of the AKS automatically constitute false claims for purposes of the False Claims Act. Congress also enacted laws to exclude providers from participation in federally funded health care programs if those providers have been convicted of crimes involving those programs. California has its own anti-kickback laws and excluded provider laws that prohibit similar conduct.
“Compliance with these laws and the policies behind them is critical to ensuring the integrity of our government funded healthcare programs,” says Jeffrey F. Keller, a founding partner at Keller Grover, a nationally recognized labor and employment law firm, and a veteran whistleblower lawyer. “Congress and the legislators in the states have made clear that they don’t want kickbacks to taint healthcare decisions and they don’t want someone who has demonstrated previous misconduct to continue to provide services to beneficiaries of these programs. It’s an obvious position to take. Every patient receiving care under these programs deserves to be treated by reputable providers who aren’t making healthcare decisions affecting a patient based on how much money the provider can make by ordering a certain hospital stay or a specific procedure.”
Under the Medicare and Medicaid programs, providers must certify that the amounts they are asking the government to pay are free from any kickback. This is true whether the provider is a hospital, a doctor, a nursing home, a pharmacy, a laboratory or an ambulance company. They also must certify that they are not employing or contracting with anyone who is excluded from participation. Violations of these laws constitute false claims under the False Claims Act.
“The government’s bright-line rules when it comes to taking kickbacks or using excluded providers are important,” says Keller, whose firm has offices in Los Angeles and San Francisco. “The patients who are beneficiaries of these programs by definition are the old, the poor and those who are less able to care for themselves. They need all these laws working together to protect their best interests.”