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What Constitutes Medicare Fraud?

Medicare is a national health insurance program, administered under the Centers for Medicare and Medicaid Services (CMS). Medicare covers many of the healthcare expenses of enrollees. Uncovered services and remaining costs may be covered by private insurance or other government benefit programs. To be eligible under Medicare, the individual has to meet one of the following requirements:

• Age 65 or older and a U.S. citizen, or LPR for 5 continuous years with a qualifying spouse or ex-spouse
• Under 65 with a disability and have been receiving SSDI or other disability benefits for a qualifying period of time
• People with End-Stage Renal Disease (ESRD) receiving continuing dialysis

Medicare fraud involves making false claims or fraudulent misrepresentations for Medicare health care benefit reimbursement. According to the Government Accountability Office, Medicare is vulnerable to fraud, with a low rate of Medicare claim audits. People accused of Medicare fraud can involve anyone involved in government healthcare benefit program, including:

• Doctors and medical providers
• Billing professionals
• Health care professionals
• Health care services companies
• Insurance companies
• Pharmaceutical companies

What Are Examples of Medicare Fraud?

Medicare fraud generally occurs between medical care providers and patients, vendors, or other doctors. There are several examples of medical billing fraud, anti-kickback violations, and financial gain through improper self-referral. Some common examples of Medicare fraud include:

• Billing for services that are not necessary
• Health care provider treatment for an undiagnosed condition
• Charging for an unnecessary expensive service
• Paying kickbacks for referrals
• Unbundling medical procedures
• Double billing or duplicate claims
• Up-coding
• Billing for medical services never provided

How is Medicare Fraud Determined?

There are several ways Medicare fraud can be identified. Suspected fraud can be reported by patients, healthcare providers, or even employees. Health care fraud cases can also be identified through computer analysis. CMS uses a Fraud Prevention System (FPS) to identify possible fraud. According to CMS, the FPS is a “state-of-the-art predictive analytics technology.”

The system assesses all Medicare fee-for-service claims to identify fraudulent claims and take administrative action. When patterns of inappropriate billing are identified, investigators conduct site visits, interview patients, and review medical records to identify fraud.

The Office of Inspector General (OIG) has a hotline for reporting potential fraud and Medicare abuse. Patients, co-workers, or employees may have an incentive for reporting fraudulent billing and may be eligible for whistleblower awards under some federal programs.

Is Medicare Fraud Civil or Criminal?

Medicare fraud charges can involve both civil and criminal laws and penalties. Federal health care fraud carries felony criminal charges. The penalties for a conviction of federal government fraud include up to 10 years in federal prison, or up to 20 if it resulted in serious bodily injury.

When a doctor refers a Medicare patient to another business or provider where the doctor has a financial interest, it may be a violation of the Physician Self-Referral Law, or the Stark Law. Civil penalties for illegal patient referrals include civil penalties, treble damages, and Medicare program exclusion.

The Anti-Kickback Statute is a criminal statute, with penalties including possible imprisonment for up to five years, fines, and exclusion from federal benefit programs.

The False Claims Act (FCA) provides for civil penalties where a doctor defrauds the federal government. The FCA also provides a reward system, and whistleblowers can recover up to 30% of the money recovered by the government.

Other penalties may include restitution, or paying back the victims of fraud. After a conviction for Medicare fraud, a doctor could also lose their medical license or be excluded from participating in Medicare or Medicaid. Medicare fraud may also involve other criminal violations, including:

• Identity theft
• Forgery
• Money laundering
• Wire fraud
• Insurance fraud

What if You Are Accused of Medicare Fraud?

Not all Medicare fraud criminal investigations involve criminal intent. There are a number of possible explanations or legal defenses when a doctor faces fraud allegations. In many cases, suspected fraud may be caused by simple mistakes or unclear rules, without any intention of fraud. A fraud attorney can review your case for a strategic defense, with possible defenses including:

• Accidentally putting in the wrong billing code
• Accidentally ordering extra diagnostic tests
• Billing employees did not have the proper training
• Patient claimed they did not already have a procedure or test
• Misspellings or unclear handwriting