The False Claims Act is one of the most commonly used laws to prosecute health care fraud in the United States. According to the most recently available figures, the United States Department of Justice recovered more than $2.2 billion through the False Claims Act in 2020. More than 90% of the recovered funds were related to health care fraud. Thus, all health care providers should make it a priority to not only understand the requirements of the federal False Claims Act but also the consequences of a violation when processing false or fraudulent claims.
At Oberheiden, P.C., our team of federal health care fraud defense attorneys is among the most experienced in the country, with literally centuries of experience handling these complex and high-stakes cases. Several of our senior lawyers formerly served in high-ranking positions within the federal government, giving us unique insight into how the government investigates and prosecutes alleged violations of the False Claims Act. Regardless of the stage of an investigation or prosecution, Oberheiden, P.C. lawyers are immediately available to join health care providers’ defense teams.
Penalties Under the False Claims Act
The False Claims Act contains provisions that allow the federal government to seek both civil and criminal penalties.
Civil False Claims Act Penalties
In the context of health care fraud, civil liability under the False Claims Act stems from 31 USC 3729, which makes it illegal to do any of the following:
- Knowingly present, or cause to be presented, a false or fraudulent claim for payment or approval; or
- Knowingly make, use, or cause to be made or used, a false record or statement material to a false or fraudulent claim.
Importantly, although the statutory language uses the term “knowingly,” courts have held that the intent requirement necessary to support a violation relates to the filing of the claim. Thus, there is no specific intent requirement in a civil False Claims Act case; the government only needs to prove that you knowingly submitted the false or fraudulent claim or caused it to be submitted.
A civil violation of the False Claims Act results in two types of monetary penalties:
- Treble Damages – The government will assess a penalty equal to three times the amount of any false claim against a party found to have violated the False Claims Act.
- Civil Monetary Penalty – In addition to treble damages, the DOJ also assesses a civil monetary penalty against anyone found in violation of the False Claims Act. The amount of this civil monetary penalty depends on when the violative conduct occurred.
Information about penalties:
- Penalties occurring after 8/1/16 – Minimum 10,781, Maximum 21,563
- Penalties occurring after 2/3/17 – Minimum 10,957, Maximum 21,916
- Penalties occurring after 1/29/18 – Minimum 11,181, Maximum 22,363
- Penalties occurring after 6/19/20 – Minimum 11,665, Maximum 23,331
- Penalties occurring after 12/13/21 – Minimum 11,803 Maximum 23,607
Notably, these civil monetary penalties are per occurrence, and a single course of conduct can result in multiple alleged violations, possibly even hundreds or thousands of violations. The result is that a health care provider’s liability under the False Claims Act can be substantial.
Finally, the federal government can also recoup its costs for bringing the lawsuit against a provider.
Criminal False Claims Act Penalties
Under 18 USC 287, the federal government can also bring criminal False Claims Act charges against a health care provider. Section 287 provides
Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be subject to a fine in the amount provided in this title.
The fines for criminal violations of the False Claims Act are much higher than for civil violations. Individuals found guilty of a felony face a penalty of up to $250,000 and $100,00 for misdemeanor convictions. Businesses and corporations face penalties up to $500,000 for felony offenses and $200,000 for misdemeanor violations.
Unlike civil False Claims Act cases, the federal government must establish that a provider had the intent to defraud the government to successfully bring criminal charges. However, providers are cautioned that the government does not need direct evidence, such as a statement from a provider, indicating their intent; DOJ prosecutors routinely rely on circumstantial evidence of a provider’s intent to pursue criminal charges.
Collateral Consequences of a False Claims Act Case
Regardless of whether a provider faces civil or criminal liability based on a violation of the False Claims Act, the consequences are not limited to those outlined in the relevant statute. This is because providers may also face program exclusion as a result of a violation, as well as other professional sanctions. If you are excluded from Medicare or Medicaid, you will not be able to treat the millions of Americans who receive these benefits. The effect of program exclusion can cripple a practice or even drive it out of business completely.
What Type of Conduct Can Result in a False Claims Act Violation?
According to the U.S. Health and Human Services Office of Inspector General, “When you submit a claim for services performed for a Medicare or Medicaid beneficiary, you are filing a bill with the Federal Government and certifying that you have earned the payment requested and complied with the billing requirements.” Thus, when a provider files a claim that they know to be false in an attempt to collect money from the government, they commit health care fraud and can be found in violation of the False Claims Act.
Some of the most common examples of False Claims Act violations include:
- Billing for services of such low quality that they are virtually worthless;
- Billing for services that were not medically necessary;
- Billing for services that were performed by an employee who has been excluded from participation in the federal health care programs;
- Billing for services that were performed by an improperly supervised or unqualified employee;
- Billing for services that you did not actually render;
- Billing separately for services already included in a global fee, like billing for an evaluation and management service the day after surgery; and
- Upcoding (using billing codes that reflect a more severe illness than actually existed or a more expensive treatment than was provided).
Why Choose the Federal Healthcare Fraud Defense Lawyers at Oberheiden P.C.?
If you or your practice is under investigation for health care fraud or already facing charges, one of the most important decisions you will make regarding your case is which attorney you select to represent you. Certainly, many qualified lawyers can competently handle your case; however, with so much at stake, why settle for mere competence?
At Oberheiden, P.C., we focus our practice exclusively on health care fraud defense. We have centuries of experience handling some of the most complex and high-stake health care fraud cases. We also have a successful track record of over 500+ jury trials and more than 1,000 cases that we were able to favorably resolve on our clients’ behalf without the need for a trial. In many of these cases, we were able to get the government to drop all charges against our clients. We attribute much of our success to the fact that many of our senior attorneys spent years prosecuting health care fraud cases on behalf of the government before joining Oberheiden, P.C. This provides us with a unique and valuable perspective into how the government views these claims and the best ways to defend against them.
Frequently Asked Questions:
Why don’t we call ourselves the “best False Claims Act defense attorneys”?
At Oberheiden, P.C., we are confident in our actual knowledge and in our ability to help physicians and other health care providers effectively defend against alleged violations of the False Claims Act. However, we don’t refer to ourselves as the “best False Claims Act attorneys” for several reasons. First, we are privy to the fact that our clientele consists of highly educated professionals who are not likely to be swayed by clever marketing language or statements that can’t be substantiated. Additionally, we feel that the term “best” is subjective and potentially misleading when describing an attorney’s services. For example, who gets to decide what makes the best False Claims Act attorneys and what criteria do they use? Because we take our ethical obligations seriously, we do everything possible to avoid making any misleading statements. However, for those looking for the best False Claims Act attorneys, we believe that our track record speaks for itself.
What is a Civil Investigative Demand?
A Civil Investigative Demand, or CID, is an investigative tool frequently used by federal investigators when looking into potential health care fraud allegations. A CID is a legally enforceable document that seeks documents or other information related to a pending federal investigation. Federal agencies use CIDs to obtain information that may become the basis for future enforcement actions. The federal government issues CIDs to witnesses, subjects, and targets, so if you receive a CID, it does not necessarily mean that you or your practice is under investigation. However, you can’t rule that out as a possibility. If you received a CID, it is not only important that you, but also that you also carefully consider your response. The experienced federal health care fraud defense lawyers at Oberheiden, P.C., are immediately available to meet with you to go over your options.
What is a qui tam lawsuit or whistleblower claim?
A whistleblower lawsuit is a type of healthcare fraud claim brought under the qui tam provision of the False Claims Act. The qui tam provision permits private citizens to report allegations of health care fraud to the U.S. government. Often, former employees, business partners, patients, or competitors file qui tam lawsuits because, under federal law, if the claim results in recovery, the relator (the person bringing the claim to the government’s attention) is entitled to a percentage of any amount recovered.
Upon receiving a whistleblower’s complaint, the government will conduct its investigation into the allegations. The federal government may decide to intervene, which means it will take over prosecuting the case. However, even if the government decides not to intervene, the whistleblower can proceed with the case at their own expense. If you recently learned that a whistleblower filed a health care fraud claim against you or your practice, reach out to the federal health care fraud defense attorneys at Oberheiden, P.C. as soon as possible.
Are You Facing a Federal Healthcare Fraud Investigation?
If you or your practice is under federal investigation for health care fraud, you must reach out to a dedicated federal healthcare fraud defense attorney as soon as possible. While these charges are undoubtedly very serious, there are also defense strategies that you can employ to mitigate your liability. At Oberheiden, P.C., our False Claims Act lawyers are immediately available to discuss your case and how we can help. To learn more and to schedule a free case evaluation, call 888-680-1745 today. You can also reach us through our online contact form. We have attorneys standing by to discuss your case with you. If a member of our team is not available immediately, we will get back to you as soon as possible.
Dr. Nick Oberheiden has successfully represented healthcare executives and physicians – as well as businesses in the areas of toxicology, pharmacy, home health and hospice centers, DME, hospitals, surgery centers, neuro-monitoring, and blood and DNA testing centers – in healthcare compliance and defense.