The federal False Claims Act (FCA) is no stranger in the healthcare sector. Originating with Abraham Lincoln during the Civil War, the FCA makes it illegal to submit a false claim for payment to any federal program. The law has been updated significantly since its inception. Still, one thing has remained consistent: whistleblowers continue to be the driving force behind almost every case filed under the false claims act.
Whistleblowers are often employees, patients, or competitors who notice something fishy is going on at their business or organization and decide to bring it forward by filing an FCA suit. The act offers protection for whistle blowers that allow them to remain anonymous while their case moves forward, which is why it’s not surprising to see the number of FCA cases continue to skyrocket.
As the healthcare industry continues to change with reform, consumers are more involved in monitoring their own medical treatment, and providers are finding new ways to improve the system as a whole through technology, Ileana Hernandez of Manatt, Phelps & Phillips Law Firm believes it’s natural for the number of FCA cases to follow suit.
Hernandez has seen healthcare fraud in various forms during her years helping whistleblowers obtain justice under the False Claims Act. She spoke with us about what providers, payers, and other industry professionals should know about FCA cases.
Q: What should providers, payers, and other industry professionals look for to avoid becoming defendants in an FCA case?
A: The first thing is to make sure you’re complying with all the pertinent laws that apply to your business. These are sometimes called the “knowing” laws because they require you to take affirmative steps to ensure compliance.
The second is to be aware of industry-specific schemes that have proven successful for FCA cases in the past. For example, we’ve seen a lot of success in the healthcare industry with cases involving pharmaceutical drug pricing and reimbursement.
The third is to have an established compliance program that’s well-monitored, so if someone does come forward with specific complaints, you can act quickly and address them before they become significant problems.
Q: What are the most common types of FCA cases in healthcare?
A: We have seen several successful whistleblower cases involving pharmaceutical companies, durable medical equipment providers, and hospitals. All of these have involved some sort of fraud or abuse regarding drug pricing or reimbursement, whether that’s through Medicare, Medicaid, TRICARE, or a private insurance company.
In addition, we’ve seen some success cases involving the billing for services that were already provided or that weren’t necessary in the first place.
Q: What should providers be on the lookout for if they think a whistleblower may have contacted their employees?
A: It can happen that an employee will bring forward allegations on behalf of the company. The most important thing for employers is to ensure they comply with all applicable laws, be diligent about their compliance programs, and make sure employees are aware of those protocols.
Most importantly, you want to avoid retaliation or intimidating your employees. Otherwise, it can fuel a retaliation lawsuit. Unfortunately, you will not win that case, and you’ll only make the situation worse for yourself, your company, and your employees.
Q: How can providers avoid lawsuits?
A: The best way to avoid a lawsuit is by complying with all applicable laws, taking affirmative steps to ensure compliance, and having an established compliance program in place so you can address any complaints quickly.
Q: What’s the biggest mistake you see healthcare providers and other industry professionals make when it comes to FCA cases?
A: The biggest mistake we see providers making is not taking compliance seriously. They think that as long as they comply with those knowing laws, such as Medicare, Medicaid, and TRICARE, they won’t get in trouble. But actually complying with those knowing laws is only part of the story.