In a recent article, we gave an overview of the basic rule of Medicare – it covers items and services that are reasonable and necessary to diagnose or treat an injury or illness. Because there is a great deal of trust between the Centers for Medicare and Medicaid Services (the “CMS”) and health care providers, the False Claims Act oftentimes plays an important role in punishing those who present inaccurate claims in connection with Medicare.
The False Claims Act was enacted approximately 150 years ago and covers not only health care, but any claims submitted to the United States government. The law states that any person who knowingly presents, or causes to be presented, to an officer or employee of the U.S. government or member of the Armed Forces, a false or fraudulent claim for payment or approval.
Thus, in order to find a violation of the False Claims Act, there is the requirement that a false or fraudulent claim has been presented. This is typically the first thing looked at in determining whether there has been a violation and covers erroneous or other non-compliant claims.
A bigger issue revolves around the requirement that the false or fraudulent claim was submitted knowingly. Scienter is required under the False Claims Act and can be shown in three different ways. The first way that knowledge can be shown is via actual knowledge. This definition speaks for itself and infers specific intent on the part of the claim presenter. The second way that knowledge can be shown is if a claim presenter acts in deliberate ignorance of the truth or falsity of the information. A potential example of this would be if a health care provider thought that his or her medical biller or staff was improperly billing Medicare, but the provider did not act upon that knowledge or do something to stop it. As a result, it is advisable for a health care provider to routinely monitor billing and act promptly if any incorrect billing is suspected. The last way that knowledge can be shown for purposes of the False Claims Act is if a claim presenter acts in reckless disregard of the truth or falsity of the information. In law, reckless disregard is typically more than just simple negligence. An example of this third type of scienter might be if a health care provider has some level of indifference to his or her billing system.
While the False Claims Act is much broader than claims presented for payment under Medicare, every health care provider needs to be on notice of the law, as a violation can be found even without actual knowledge that non-compliant claims are being submitted. As such, there is a responsibility on the part of health care providers to keep a level of supervision over its billing to ensure that it is compliant with the law.
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