The federal False Claims Act (FCA) is the primary government weapon in combating health care fraud since it covers a broad range of activities and includes huge penalties and settlement potential, according to John Brennan, a Partner at Crowell & Moring LLP. He spoke at a Crowell & Moring seminar on October 26-27, 2006 in Washington, D.C.
Since 1986, $17 billion has been recovered under the FCA, including $12.4 billion in HHS-related cases alone. In 2004, 80 percent of all FCA recoveries were via whistleblower cases, he noted. "Whistleblower cases are rising exponentially," he said.
False claims prosecutions will “follow the money,” said Brennan, adding that prosecutions will increasingly involve Part D participants, the pharmaceutical product marketplace, medical device manufacturers, and fiscal intermediaries and carriers.
Contractor immunity decreasing. The scope of FCA immunity for Medicare contractors may be narrowing, said Brennan, who discussed recent case law. Prior to the Medicare Modernization Act of 2003, which eliminated the absolute immunity defense prospectively, immunity was available only in the "absence of gross negligence or intent to defraud the United States." But court cases have held that the 1965 Medicare Act did not preclude absolute immunity for contractors. No immunity is available now in situations where an intermediary or carrier acted with "reckless disregard or with intent to defraud the government," he said. Moreover, the government has agreed that qualified immunity was not intended to be applied retroactively to pre-MMA matters.
In
SOURCE: CCH Washington Bureau, Oct. 30, 2006.
For more information on this and related topics, consult the CCH® Medicare and Medicaid Guide.
Visit our News Library to read more news stories.
