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The Ethical Health Lawyer: Ethical Lawyering in the Gray Areas: Health Care Fraud and Abuse
Published online by Cambridge University Press: 01 January 2021
Extract
Few areas of health law practice present as many quandaries for the ethical health lawyer as health care fraud and abuse. The activities addressed by the anti-fraud laws – such as payment for referrals and submission of false claims – not only have a direct impact on the financial viability of the federal health care programs, but go to the heart of the ethical behaviors expected of those who transact business with the government. The severe consequences of violating these proscriptions include significant monetary penalties, ineligibility to participate in the federal health care programs, and even imprisonment. It is no wonder, then, that compliance with the fraud and abuse laws is a key consideration in any health care venture. At the same time, ethical considerations make this area of health law particularly vexing for counsel, raising numerous challenges that include how to balance the strategic goals of current clients against the interests of future clients and whether to advise clients to self-report potential violations even when illegal intent may not easily be shown.
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References
Blumstein, J. F., “What Precisely is ‘Fraud’ in the Health Care Industry?” Wall Street Journal, December 8, 1997, at A25.Google Scholar
The FCA generally imposes liability when: (a) a defendant presents or causes to be presented a claim for payment or approval; (b) the claim is false or fraudulent; and (c) the acts are undertaken knowingly. 31 U.S.C. § 3729(a)(1). The Anti-Kickback Statute prohibits offering, paying, soliciting, or receiving any remuneration to induce someone to refer patients to any facility, or to purchase, lease, or order any item or service, for which payment may be made by a federal health care program. 42 U.S.C. § 1320a-7b(b). The Stark Law, nicknamed for its congressional sponsor, Representative Fortney “Pete” Stark (D-CA), is a civil statute designed to prohibit the referral of Medicare and Medicaid patients to health care providers with which the referring physician has a financial relationship. 42 U.S.C. § 1395nn.Google Scholar
For a discussion of these trends, see Krause, J. H., “A Conceptual Model of Health Care Fraud Enforcement,” Journal of Law & Policy 12 (2003): 55–147.Google Scholar
See 42 U.S.C. § 1395nn(b)-(e) (2003) (listing detailed exceptions). For a detailed discussion of the Stark Law and regulations, including the use of the FCA as a vehicle for enforcing the statute, see Krause, , supra note 3, at 77–81.Google Scholar
42 U.S.C. § 1320a-7b(b) (2000). At present, it is unclear whether the statute requires proof of specific intent. In Hanlester Network v. Shalala, the Ninth Circuit held that the statute could not be violated unless the defendant both knew the law prohibited giving or receiving remuneration in return for referrals and acted with specific intent to violate the statute. 51 F.3d 1390, 1400 (9th Cir. 1995). In contrast, other circuits have held that specific intent is not required because the Anti-Kickback statute is not the type of “highly technical…regulation that poses a danger of ensnaring persons engaged in apparently innocent conduct.” United States v. Starks, 157 F.3d 833, 838 (11th Cir. 1998).Google Scholar
See 42 U.S.C. § 1320a-7d (advisory opinion process); 42 C.F.R. § 1001.952 (safe harbor regulations). A list of advisory opinions and special fraud alerts is available on the Office of Inspector General web site at <http://www.oig.hhs.gov/fraud.html> (last visited January 3, 2006).+(last+visited+January+3,+2006).>Google Scholar
See Medicare & State Health Care Programs: Fraud and Abuse; OIG Anti-Kickback Provisions, Federal Register 56: 35,952, 35,954, 35,956 (July 29, 1991). Together with questions of fair market value, intent is one of the two issues that the Advisory Opinions are statutorily prohibited from addressing. See 42 U.S.C. § 1320a-7(d)(3).Google Scholar
See 31 U.S.C. 3729(b); S. Rep. 99–345 at 7 (1986), reprinted in 1986 U.S.C.A.A.N. 5266, 5272 (“The Committee is firm in its intention that the act not punish honest mistakes or incorrect claims submitted through mere negligence”).Google Scholar
195 F.3d 457 (9th Cir. 1999).Google Scholar
Id., at 463.Google Scholar
See, e.g., Peterson v. Weinberger, 508 F.2d 45, 47–48 (5th Cir. 1975) (imposing liability on a physician who submitted bills to Medicare for physical therapy services that were not performed); United States v. Krizek, 111 F.3d 934, 936 (D.C. Cir. 1997) (addressing liability of psychiatrist who billed for 40–50 minute treatment sessions despite having spent only 20–30 minutes with patients).Google Scholar
914 F. Supp. 1507 (M.D. Tenn. 1996).Google Scholar
Id., at 1509.Google Scholar
Id., at 1507.Google Scholar
945 F. Supp. 1485, 1487 (W.D. Okla. 1996) (alleging that environment was not “reasonably safe” because under-staffing placed patients in danger of physical injury and sexual abuse).Google Scholar
Id., at 1488. Because the opinion arose on a motion to dismiss, the court did not have occasion to address whether the plaintiff ultimately would have prevailed on the merits.Google Scholar
See, e.g., Hoffman, D. R., “The Role of the Federal Government in Ensuring Quality of Care in Long-Term Care Facilities,” Annals of Health Law 6 (1997): 147–56 (detailing the prosecuting attorney's discussion of United States v. GMS Management-Tucker, Inc., No. 96-1271 [E.D. Pa., settled Feb. 21, 1996]).Google Scholar
Sheehan, J., “Bio-Tech Fraud: Reality or Fantasy?” Houston Journal of Health Law & Policy 2 (2002): 11–29, at 18.Google Scholar
See 31 U.S.C. § 3729(a) (statutory penalties); 28 C.F.R. § 85.3(a)(9) (increasing penalties for inflation); 42 U.S.C. § 1128(b) (permitting permissive exclusion of health care providers).Google Scholar
See Krause, J. H., “Health Care Providers and the Public Fisc: Paradigms of Government Harm Under the Civil False Claims Act,” Georgia Law Review 36 (2001): 121–217, at 202–06 (discussing problems created by mass settlement of FCA allegations); Reinhardt, U. E., “Medicare can Turn anyone into a Crook,” Wall Street Journal, January 21, 2000, at A18. (“Rather than engaging in a long, protracted fight to set the record straight, throughout which share prices suffer and business slumps, a health company's best bet may simply be to hand over the fines and get on with business.”)Google Scholar
See Krause, , supra note 20, at 205–06.Google Scholar
A complete list of Compliance Program Guidance documents is available at <http://www.oig.hhs.gov/fraud/complianceguidance.html> (last visited January 3, 2006).+(last+visited+January+3,+2006).>Google Scholar
See, e.g., “OIG Draft Supplemental Compliance Program Guidance for Hospitals,” Federal Register 69 (June 8, 2004): 32,012, 32,030.Google Scholar
Note that if the client is operating under a Corporate Integrity Agreement (which is negotiated as part of a fraud settlement in return for OIG's agreement not to seek permissive exclusion), the client may have no choice but to report under the terms of the Agreement.Google Scholar
See 42 U.S.C. § 1001.952 (safe harbors); Medicare and State Health Care Programs, supra note 7, at 35,954 (noting that legality of arrangements that do not fall within safe harbors will depend on a fact-specific analysis).Google Scholar
See United States v. Anderson, CR 98–20030–JWL (D. Kan. March 9, 1999) (Trial Transcript, copy on file with author).Google Scholar
Id., at 4–5.Google Scholar