Medicare & Medicaid Fraud: Stark and Anti-Kickback Laws

Medicare and Medicaid Fraud Lawyers

Stark and Anti-Kickback Laws

The overwhelming majority of physicians and healthcare providers strive to serve their patients. However, a small percentage decide to become entrepreneurs at the expense of their patients. The Stark and Anti-Kickback laws were passed by Congress to prevent personal greed from influencing the quantity and quality of medical care paid for by Medicare, Medicaid, and federal employee benefit programs. Underlying this law is the concern that such a financial interest can influence a physician's decision about what medical care to furnish a patient and who should furnish the care.

The Stark law does not apply only to physicians: medical facilities, healthcare clinics and hospitals can violate it. People from all areas of the medical profession, including doctors, nurses, hospital administrators, billing coders and fiscal analysts, have sought advice from Cross & Bennett LLC concerning possible fraud, and Cross & Bennett LLC has represented people from these various groups in the pursuit of whistleblower claims.

The Stark regulations prohibit self-referrals in eleven "designated health services" in addition to clinical laboratory services, including physical therapy services; occupational therapy services; radiology services, including magnetic resonance imaging, computerized axial tomography scans, and ultrasound services; radiation therapy services and supplies; durable medical equipment and supplies; parenteral and enteral nutrients, equipment and supplies; prosthetics, orthotics, and prosthetic devices and supplies; home health services; outpatient prescription drugs; and inpatient and outpatient health services, including lithotripsy and pain management anesthesia services.

The law also provides exceptions or "safe harbors," which permit the referral of these services under certain circumstances that assure that the services that are being provided are at fair market value and were properly referred. However, any payment for designated health services exceeding fair market value may presumptively constitute an illegal referral.

The Anti-Kickback statute similarly prohibits illegal payments or bribes in exchange for health services. Recent large pharmaceutical company settlements have been based, in part, on drugs companies' payments of physicians to prescribe medications off-label.

The United States Department of Justice has independent jurisdiction over the anti-kickback statute, while the Centers for Medicare and Medicaid Services (CMS) has primary jurisdiction with respect to Stark. A whistleblower may bring a case under either (or both statutes) under the False Claims Act and the Department of Justice, or the state Attorney General in a state law claim, will have the primary responsibility of prosecuting the claim.

There are numerous fraudulent practices that have resulted in awards to whistleblowers, including the 'non-provision' of billed healthcare services and healthcare services not medically necessary or performed in violation of other regulations. C.F.O.'s, hospital administrators, fiscal analysts, physicians and nurses all have been successful whistleblowers.