Medicare Compliance & Reimbursement

Find out how this statute creates an uneven playing field that recently got bigger.

Finding out that you're the target of a False Claims Act investigation is likely high on most providers' worry lists these days -- and for good reason. Below legal experts provide a run-through of why this statute can be problematic.

No. 1. The cards are stacked in prosecutors' favor. FCA cases give the government leverage that they don't have in typical civil litigation, observes attorney Antonia Giuliana, with Kelley Drye & Warren in New York, N.Y. "For example, many FCA investigations are settled before the case is unsealed and the litigation even starts." This gives the government the chance to conduct "one-sided discovery" on providers who aren't allowed to do the same with the government until the case is unsealed and initiated, she explains.

Also: Providers are always concerned that while they can put up a "meritorious defense," they likely lack the "financial wherewithal" to challenge the government in a FCA case, says attorney Robert Liles, with Liles Parker in Washington, D.C. Without spending "a large sum of money digging into the facts," a provider has a hard time proving it didn't have "knowledge" of a false claim, which the FCA broadly defines as "actual knowledge, reckless disregard and/ or deliberate ignorance."

No. 2: Losing at trial can be catastrophic. Providers that take a case to trial and have an affirmative finding of a violation risk treble damages and $5,500 to $11,000 per claim, Liles adds. "It's like the Sword of Damocles above providers' heads."

Not only that: Providers that have a finding of liability could be excluded from Medicare and Medicaid, effectively putting them out of business, says Giuliana.

No. 3. Recent changes extend the FCA's reach. Liles predicts providers can expect to see a dramatic increase in FCA cases due to changes that "broadened the scope of cases susceptible to liability under the [statute]." Specifically, "the Fraud Enforcement and Recovery Act (FERA) amended the FCA to include the failure to return an overpayment as a false claim," relays attorney Anna Grizzle, with Bass Berry Sims in Nashville, Tenn. And "the healthcare reform act added a 60-day requirement for returning an overpayment."

"These changes in the law are really putting the pressure on providers to quickly determine whether any billing discrepancies resulted in overpayments -- and quickly return any overpayments," says Grizzle.