Is Health Care Fraud on the Rise? Or Just the Accusations??

Recent stories in the news seem to suggest that health care fraud is running rampant.  We’ve got stories about Eric Leak‘s Medicaid agency, Nature’s Reflections, funneling money to pay athletes, a seizure of property in Greensboro for alleged Medicaid fraud, and, in Charlotte, a man was charged with Medicaid fraud and sentenced to three years under court supervision and ordered to pay $3,153,074. And these examples are local.

Health care fraud with even larger amounts of money at stake has been prosecuted in other states.  A nonprofit up in NY is accused of defrauding the Medicaid system for over $27 million.  Overall, the federal government opened 924 criminal health care fraud investigations last year.

What is going on? Are more people getting into the health care fraud business? Has the government become better at detecting possible health care fraud?

I believe that the answer is that the federal and state governments have determined that it “pays” high dividends to invest in health care fraud investigations.  More and more money is being allocated to the fraud investigative divisions.  More money, in turn, yields more health care fraud allegations…which yields more convictions….and more money to the government.

Believe me, I understand the importance of detecting fraud.  It sickens me that those who actually defraud our Medicaid and Medicare systems are taking medically necessary services away from those who need the services.  However, sometimes the net is cast so wide…so far…that innocent providers get caught in the net.  And being accused of health care fraud when you innocent is a gruesome, harrowing experience that (1) you hope never happens; and (2) you have to be prepared in case it does.  I have seen it happen.

As previously stated, in fiscal year (FY) 2014, the federal government opened 924 new criminal health care fraud  investigations.  That’s 77 new fraud investigations a month!!  This number does not include civil investigations.

In FY 2012, the Department of Justice (DOJ) opened 2,016 new health care fraud investigations (1,131 criminal, 885 civil).

The Justice Department launched 903 new health-care fraud prosecutions in the first eight months of FY 2011, more than all of FY 2010.

These numbers show:

  • an 85% increase over FY 2010,
  • a 157% increase over FY 2006
  • and 822% over FY 1991.

And the 924  investigations opened in fiscal 2014 only represent federal investigations.  Concurrently, all 50 states are conducting similar investigations.

What is being recovered? Are the increased efforts to detect health care fraud worth the effort and expenditures?

Heck, yes, it is worth it to both the state and federal governments!

Government teams recovered $4.3 billion in FY 2013 and $19.2 billion over the last five years.  While still astronomically high, the numbers dropped slightly for FY 2014.  In FY 2014, according to the Annual Report of the Departments of Health and Human Services and Justice, the federal government won or negotiated over $2.3 billion in health care fraud judgments and settlements.  Due to these efforts, as well as efforts from preceding years, the federal government retrieved $3.3 billion from health care fraud investigations.

So the federal and state governments are putting more money into investigating health care fraud.  Why?

The Affordable Care Act.

Obviously, the federal and state governments conducted health care fraud investigations prior to the ACA.  But the implementation of the ACA set new mandates to increase fraud investigations. (Mandates, which were suggestions prior to the ACA).

In 2009, Barack Obama signed Executive Order 13520, which was targeted to reduce improper payments and to eliminate waste in federal programs.

On March 23, 2010, President Obama signed the ACA into law.  A major part of the ACA is focused on cost containment methods. Theoretically, the ACA is supposed to be self-funding.  Detecting fraud, waste and abuse in the Medicare/Medicaid system helps to fund the ACA.

Unlike many of the other ACA provisions, most of the fraud and abuse provisions went into effect in 2010 or 2011. The ACA increases funding to the Healthcare Fraud and Abuse Control Program by $350 million over the next decade. These funds can be used for fraud and abuse control and for the Medicare Integrity Program.

The ACA mandates states to conduct post payment and prepayment reviews, screen and audit providers, terminate certain providers, and create provider categories of risk.

While recent articles and media seem to indicate that health care fraud is running rampant, the substantial increase in accusations of health care fraud really may be caused by factors other than more fraud is occurring.

The ACA mandates have an impact.

And, quite frankly, the investigation units may be a bit overzealous to recover funds.

What will happen if you are a target of a criminal health care fraud investigation?

It depends whether the federal or state government is conducting the investigation.

If the federal government is investigating you, most likely, you will be unaware of the investigation.  Then, one day, agents of the federal government will come to your office and seize all property deemed related to the alleged fraud.  Your accounts will be frozen.  Whether you are guilty or not will not matter.  What will matter is you will need an experienced, knowledgeable health fraud attorney and the funds with which to compensate said attorney with frozen accounts.

If the state government is conducting the investigation, it is a little less hostile and CSI-ish.  Your reimbursements will be suspended with or without your notice (obviously, you would notice the suspension once the suspension occurred).  But the whole “raid on your office thing” is less likely.

There are legal remedies available, and the “defense” should begin immediately.

Most importantly, if you are a health care provider and you are not committing fraud, you are not safe from accusations of fraud.

Your insurance, most likely, will not cover attorneys’ fees for alleged intention fraud.

The attorney of your choice will not be able to accept funds that are “tainted” by alleged fraud, even if no fraud occurred.

Be aware that if, for whatever reason, you are accused, you will need to be prepared…for what you hope never happens.

About kemanuel

Medicare and Medicaid Regulatory Compliance Litigator

Posted on March 25, 2015, in "Single State Agency", Affordable Care Act, Agency, CMS, Credible Allegations of Fraud, Criminal Medicaid Fraud, Division of Medical Assistance, Due process, Federal Government, Federal Law, Fraud, Health Care Providers and Services, HHS, Injunctions, Innocent Until Proven Guilty, Lawsuit, Legal Remedies for Medicaid Providers, Medicaid, Medicaid Advocate, Medicaid Attorney, Medicaid Audits, Medicaid Fraud, Medicaid Investigations Division, Medicaid Providers, Medicaid Reimbursements, Medicaid Services, Medicare, Medicare and Medicaid Provider Audits, Medicare Attorney, Medicare Audits, NC, NC Department of Justice, NC DHHS, New York Medicaid, North Carolina, Obamacare, Preliminary Injunctions, Program Integrity, Prosecution, Provider Medicaid Contracts, Regulatory Audits, Suspension of Medicaid Payments, Tax Dollars, Termination of Medicaid Contract, TRO and tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink. 7 Comments.

  1. Thank you Kemanuel for all that you do and the passion that you do it with.

  2. Bartleby the Scrivener

    *sigh* This sounds like it goes quite a bit past ‘draconian’ if the feds seek you out.

  3. Bartleby, it seems Draconian in some cases possibly, but the fact is that there are some totally unscrupulous people out there. In fact with Nicole’s 2nd example in the 1st paragraph, this particular provider was billing for “ambulance” services, and hadn’t owned an ambulance for 4 or 5 years (among other issues). And like she admirably points out, these payments for services having not been delivered, deprives recipients from getting the services they deserve.

  4. Attended a training today from my company’s accrediting body. National accreditation is a requirement, of course, which I think would be fine were it not for the other constant monitorings.

    While networking with similar provider reps I heard the usual words: investigations, paybacks, plans of correction, program integrity, rate cuts, and, yes, the ACA. As much research as I have done about the ACA, I did not realize the employer shared responsibility (employer mandate) also applied to non-profits.

    But really my point was regarding Ron’s comment. I agree there is a problem of waste, fraud and abuse of the system. I agree that it is wrong and has horrible ramifications on the people who rely on these services and makes those who do right look bad.

    That said, good providers are really being nailed to the wall right now. The scrutiny is extremely intense. If someone looks at a chart in August and a form was not signed in March, that’s a $20,000 payback. If people in the field are given rumors that an employee may have been talking on their cell phone too often, that’s a Plan of Correction.

    One provider stated that after a consumer went to another agency, the guardian mentioned during an exit interview that the employee may have provided a few hours of services at their private residence (as requested by the guardian) when that private residence lacked the requisite annual Health and Safety review. But the guardian could not remember when or how often or if it actually happened.

    The investigation for this went directly to the program integrity department to see if a payback was warranted. PI has had the case for two months with no report of findings while the provider anxiously awaits to see if “maybe something happened” that harmed no one will cost them tens of thousands of dollars.

    And to stand on my soap box a moment more. Every provider worth their salt, and the vast majority are, wants the very best for their consumer/client/individual. At the same time, when people are moved (and this is specific to my field), from institutions to home and community based settings, as they should be when at all possible, things happen that are out of the provider’s control. That are out of the guardian’s control. That are out of the MCO’s control.

    What you have to be careful of, when you hold Home and Community Based Services to the same level of regulation as an institution, you could be, as a person stated at a recent DHHS Forum, institutionalizing people in their own homes.

    That’s all well and good if your goal is cheaper institutions. And if that is anyone’s goal, shame on them.

    Thanks to everyone who comments here and for Knicole for hosting this forum. This blog is an invaluable resource for a lot of us out there.

    • Anonymous, Well said and thank you for the compliment. I completely agree that good providers are getting nailed. I see it every day with every client. It is a travesty. I’ve seen POCs and alleged overpayments for providers going above and beyond requirements, for using a purple pen, for using electronic signatures, for unintentionally writing the incorrect date, for the auditors failing to ask for the correct documentation, for using odd fonts…the list goes on….

      Sadly, sometimes those POCs and alleged overpayments turn into criminal accusations and good providers have to defend themselves.

      We need to somehow have a system that can detect real fraud without harming innocent providers. We do not have such now.

  1. Pingback: State Auditor Finds Taxpayer Waste at OMMISS!!!! | medicaidlaw-nc

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