Lesson 1: Introduction & Learning Objectives

This lesson describes fraud, waste, and abuse (FWA) and the laws that prohibit it. It should take you about 10 minutes to complete.

After completing this lesson, you should be able to:

* Recognize FWA in the Medicare Program
* Identify major FWA laws and regulations
* Recognize potential consequences and violation penalties

 

 

 

Fraud

Fraud is knowingly submitting, or causing to be submitted, false claims or making misrepresentations of fact to get a federal health care payment when no entitlement would otherwise exist. Knowingly soliciting, getting, offering, or paying remuneration (for example, kickbacks, bribes, or rebates) to induce or reward referrals for items or services reimbursed by federal health care programs. Making prohibited referrals for certain designated health services is another example.

 

Fraud requires intent to get payment and knowledge the actions are wrong.

 

 

 

Fraud (continued)

The Criminal Health Care Fraud Statute (18 United States Code (USC) 1347) makes it a criminal offense to knowingly and willfully execute a scheme to defraud a health care benefit program. Health care fraud is punishable by imprisonment up to 10 years. It’s also subject to criminal fines up to $250,000. The statute prohibits knowingly and willfully executing, or attempting to execute, a scheme or lie connected to delivering or paying for health care benefits, items, or services to either:

* Defraud any health care benefit program
* Get (by means of false or fraudulent pretenses, representations, or promises) money or property owned by, or controlled by, any health care benefit program

Example: Several doctors and medical clinics conspire in a coordinated scheme to defraud the Medicare Program by submitting medically unnecessary power wheelchair claims.

Penalties: Penalties for violating the Criminal Health Care Fraud Statute may include fines, imprisonment, or both.

 

 

 

Waste & Abuse

Waste describes practices that, directly or indirectly, result in unnecessary Medicare Program costs, like overusing services. Waste is generally not considered to be criminally negligent but rather the misuse of resources.

Abuse describes practices that, directly or indirectly, result in unnecessary Medicare Program costs. Abuse includes any practice that doesn’t provide patients with medically necessary services or meet professionally recognized standards of care.

 

Section 20 of Medicare Managed Care Manual, Chapter 21 and Prescription Drug Benefit Manual, Chapter 9 have fraud, waste, and abuse definitions.

 

 

 

Fraud, Waste, & Abuse Examples

Medicare fraud examples:

* Knowingly billing for services of higher complexity than services actually provided or documented in patient medical records
* Knowingly billing for services or supplies not provided, including falsifying records to show item delivery
* Knowingly ordering medically unnecessary patient items or services
* Paying for federal health care program patient referrals
* Billing Medicare for appointments patients don’t keep

Medicare waste examples:

* Conducting excessive office visits or writing excessive prescriptions
* Prescribing more medications than necessary for treating a specific condition
* Ordering excessive lab tests

Medicare abuse examples:

* Billing unnecessary medical services
* Charging excessively for services or supplies
* Misusing codes on a claim, like upcoding (assigning an inaccurate medical procedure or treatment billing code to increase payment) or unbundling codes

 

 

 

Fraud, Waste, & Abuse Differences

There are differences between fraud, waste, and abuse. One of the primary differences is intent and knowledge. Fraud requires intent to get payment and knowledge the actions are wrong. Waste and abuse may involve getting an improper payment or creating unnecessary Medicare Program costs but don’t require the same intent and knowledge.

 

 

 

Understanding Fraud, Waste, & Abuse

To detect FWA, you need to know the law.

The next pages provide high-level information about these laws:

* Federal Civil False Claims Act (FCA)
* Criminal Health Care Fraud Statute
* Anti-Kickback Statute (AKS)
* Physician Self-Referral Law (Stark Statute)
* Civil Monetary Penalties Law (CMPL)
* Exclusion Statute
* Health Insurance Portability and Accountability Act (HIPAA)

For details about specific laws, review the applicable statute and regulations.

 

 

 

Federal Civil False Claims Act

The civil False Claims Act (FCA) (31 USC 3729–3733) makes a person liable to pay damages to the government if they knowingly:

* Conspire to violate the FCA
* Carry out other acts to get government property by misrepresentation
* Conceal or improperly avoid or decrease an obligation to pay the government
* Make or use a false record or statement supporting a false claim
* Present a false claim for payment or approval

Additionally, under the criminal FCA (18 USC 287), individuals or entities may face criminal penalties, including fines, imprisonment, or both for submitting false, fictitious, or fraudulent claims.

Examples:

A Florida Medicare Part C plan:

* Hired an outside company to review medical records to find additional diagnosis codes it could submit to increase CMS risk capitation payments
* Was informed by the outside company that certain diagnosis codes previously submitted to Medicare were undocumented or unsupported
* Failed to report the unsupported diagnosis codes to Medicare
* Agreed to pay $22.6 million to settle FCA allegations

The owner-operator of a California medical clinic:

* Used marketers to recruit individuals for medically unnecessary office visits
* Promised free, medically unnecessary equipment or free food to entice individuals
* Charged Medicare more than $1.7 million for the scheme
* Was sentenced to 37 months in prison

 

Damages & Penalties

 

Penalties for violating the civil FCA may include recovery of up to 3 times the amount of the government’s damages due to the false claims, plus $11,000 per false claim filed.

 

 

 

Federal Civil False Claims Act (continued)

Whistleblower: A person who exposes information or activity that’s deemed illegal, dishonest, or violates professional or clinical standards
Protected: A person who reports false claims or brings legal actions to recover money paid on false claims is protected from retaliation
Rewarded: A person who brings a successful whistleblower lawsuit gets at least 15%, but not more than 30%, of the money the government collects

 

 

 

Criminal Health Care Fraud Statute

The Criminal Health Care Fraud Statute (18 USC 1346–1349) states, “Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice to defraud any health care benefit program or obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program … shall be fined under this title or imprisoned not more than 10 years, or both.”

Conviction under the statute doesn’t require proof the violator knew the law or had specific intent to violate it.

Examples:

A Pennsylvania pharmacist:

* Submitted Medicare Part D claims for non-existent prescriptions and drugs not dispensed
* Pleaded guilty to health care fraud
* Got a 15-month prison sentence and was ordered to pay more than $166,000 in restitution to the plan

The owner of multiple New York Durable Medical Equipment (DME) companies:

* Falsely represented themselves as 1 of a nonprofit health maintenance organization’s (that administered a Medicare Advantage plan) authorized vendors
* Didn’t provide DME to any patients as claimed
* Submitted almost $1 million in false claims to the nonprofit; was paid $300,000
* Pleaded guilty to 1 count of conspiracy to commit health care fraud

 

 

 

Criminal Health Care Fraud Statute (continued)

Persons who knowingly make a false claim may be subject to:

* Criminal fines up to $250,000
* Imprisonment for up to 20 years

If the violations resulted in death, the individual may be imprisoned for any term of years or for life.

18 USC 1347 has more information.

 

 

 

Anti-Kickback Statute

The Anti-Kickback Statute (AKS) (42 USC 1320a-7b(b)) makes it a crime to knowingly and willfully offer, pay, solicit, or get any remuneration directly or indirectly to induce or reward patient referrals or business generation involving any item or service payable by a federal health care program. When a provider offers, pays, solicits, or gets unlawful remuneration, they violate the AKS.

The safe harbor regulations (42 CFR 1001.952) describe various payment and business practices that, although they potentially implicate the AKS, aren’t treated as AKS offenses if they meet certain regulatory requirements. Individuals and entities remain responsible for complying with all other laws, regulations, and guidance that apply to their businesses.

Comparison of the Anti-Kickback Statute and Stark Law handout has more information.

Example:

A physician operating a Rhode Island pain management practice:

* Conspired to solicit and get kickbacks for prescribing a highly addictive version of the opioid Fentanyl
* Reported patients had breakthrough cancer pain to secure insurance payments
* Got $188,000 in speaker fee kickbacks from the drug manufacturer
* Admitted the kickback scheme cost Medicare and other payers more than $750,000

The physician was required to pay more than $750,000 in restitution.

Damages & Penalties

Violations are punishable by:

* A fine up to $25,000
* Imprisonment up to 5 years, or both

Section 1128B(b) of the Social Security Act has more information.

 

 

 

Physician Self-Referral Law (Stark Law)

The Physician Self-Referral Law (42 USC 1395nn), often called the Stark Law, prohibits a physician from referring a patient to get designated health services from a provider with whom a physician or a physician’s immediate family member has a financial relationship, unless an exception applies.

Designated health services:

* Clinical lab services
* Physical therapy, occupational therapy, and outpatient speech-language pathology services
* Radiology and other imaging services
* Radiation therapy services and supplies
* DME and supplies
* Parenteral and enteral nutrients, equipment, and supplies
* Prosthetics, orthotics, and supplies
* Home health services
* Outpatient prescription drugs
* Inpatient and outpatient hospital services

Damages & Penalties

We don’t pay Medicare claims tainted by an arrangement that doesn’t comply with the Stark Statute. A penalty of appoximately $25,000 can be imposed for each service provided. There may also be a fine over $160,000 for entering into an unlawful arrangement or scheme.

Physician Self-Referral webpage and section 1877 of the Social Security Act have more information.

Example:

A California hospital was ordered to pay more than $3.2 million to settle Stark Law violations for maintaining 97 financial relationships with physicians and physician groups outside the fair market value standards or that were improperly documented as exceptions.

 

 

 

Civil Monetary Penalties Law

The Civil Monetary Penalties Law (CMPL) (42 USC 1320a-7a) authorizes the Office of Inspector General (OIG) to seek Civil Monetary Penalties (CMPs) and sometimes exclusions for a variety of health care fraud violations. Violations that may justify CMPs include:

* Arranging for an excluded individual’s or entity’s services or items
* Failing to grant OIG timely records access
* Filing a claim you know or should know is for an item or service that wasn’t provided as claimed or is false or fraudulent
* Filing a claim you know or should know is for an item or service for which we won’t make payment
* Violating the AKS
* Violating Medicare assignment provisions
* Violating the Medicare physician agreement
* Providing false or misleading information expected to influence a discharge decision
* Failing to provide an adequate medical screening exam for patients who present to a hospital emergency department with an emergency medical condition or in labor
* Making false statements or misrepresentations on applications or contracts to participate in federal health care programs

Section 1128A(a) of the Social Security Act has more information.

Example:

A California pharmacy and its owner agreed to pay over $1.3 million to settle allegations they submitted unsubstantiated Medicare Part D claims for brand name prescription drugs the pharmacy couldn’t have dispensed based on inventory records.

Damages & Penalties

Penalties and assessments vary based on the type of violation. Penalties can be approximately $10,000–$50,000 per violation. CMPs may also include an assessment of up to 3 times the amount claimed for each item or service, or up to 3 times the amount of remuneration offered, paid, solicited, or received.

 

 

 

Exclusion Statute

The Exclusion Statute (42 USC 1320a-7) requires the OIG exclude individuals and entities convicted of these offenses from participating in all federal health care programs:

* Medicare or Medicaid fraud, as well as other offenses related to delivering Medicare or Medicaid items or services
* Patient abuse or neglect
* Felony convictions for other health care-related fraud, theft, or other financial misconduct
* Felony convictions for unlawful manufacture, distribution, prescribing, or dispensing controlled substances

The OIG also maintains the List of Excluded Individuals and Entities (LEIE) website.

The U.S. General Services Administration (GSA) administers the Excluded Parties List System (EPLS), which enables various federal agencies, including the OIG, to take debarment actions.

When looking for excluded individuals or entities, check both the LEIE and the EPLS since the lists aren’t the same. 42 CFR 1001.1901 has more information.

Example:

A pharmaceutical company pleaded guilty to 2 felony counts of criminal fraud for not filing required reports with the FDA about oversized morphine sulfate tablets. The pharmaceutical firm executive was excluded based on the company’s guilty plea. When the unconvicted executive was excluded, there was evidence he was involved in misconduct leading to the company’s conviction.

 

 

 

Health Insurance Portability and Accountability Act

The Health Insurance Portability and Accountability Act (HIPAA) created greater access to health care insurance, strengthened health care data privacy protection, and promoted health care industry standardization and efficiency.

HIPAA safeguards deter unauthorized access to protected health care information. As someone with access to protected health care information, you must comply with HIPAA.

Example:

A former hospital employee pleaded guilty to criminal HIPAA charges after getting protected health information with the intent to use it for personal gain. He was sentenced to 12 months and 1 day in prison.

Damages & Penalties

Violations may result in CMPs. In some cases, criminal penalties may apply.

 

 

 

Lesson 1 Summary

There are differences between fraud, waste, and abuse (FWA). One of the primary differences is intent and knowledge.

Fraud is knowingly submitting, or causing to be submitted, false claims or making misrepresentations of fact to get a federal health care payment for which no entitlement would otherwise exist.

Waste and abuse may involve getting an improper payment but not the same intent and knowledge.

Laws and regulations exist that prohibit FWA. Penalties for violating these laws include:

* Civil Monetary Penalties
* Civil prosecution
* Criminal conviction, fines, or both
* Exclusion from all federal health care program participation
* Imprisonment
* Loss of professional license

 

 

 

Review Questions

You reviewed the differences between fraud, waste and abuse. The next pages ask review questions to help reinforce this knowledge.

 

 

 

Review Question

Select the correct answer.

Which of these requires intent to get paid and knowing the actions are wrong?

A.  Fraud
B.  Abuse
C.  Waste

 

 

 

Review Question

Select the correct answer.

Which of these is NOT a potential penalty for violating laws or regulations prohibiting fraud, waste, and abuse (FWA)?

A.  Civil Monetary Penalties (CMPs)
B.  Deportation
C.  Exclusion from participation in all federal health care programs

 

 

 

You’ve completed Lesson 1: What’s Fraud, Waste, & Abuse?

Now that you’ve learned about FWA and the laws and regulations prohibiting it, let’s look closer at your role in the fight against FWA.

Select Continue to return to the Course Menu. Then, select Lesson 2: Your Role in the Fight Against Fraud, Waste, & Abuse.