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Attorney John Durso, Ungaretti & Harris LLP
Attorney John Durso, Ungaretti & Harris LLP
We've heard a lot about the False Claims Act being invoked to sue or prosecute providers. How do we steer clear of this?

The Federal False Claims Act (FCA) is an increasingly successful weapon in the federal government's efforts to combat healthcare fraud and abuse.

The FCA imposes liability on those who “knowingly” present, or cause to be presented, to the federal government a false or fraudulent claim for payment. Actions taken “knowingly” include those made in “deliberate ignorance” or with “reckless disregard” of the facts. False or fraudulent claims include those submitted for services not performed and those with false or misrepresented information about the services performed.

The FCA is enforced by the Attorney General and private individuals who are empowered to bring civil actions. Private persons, known as “relators,” who bring qui tam (a.k.a. “whistleblower”) actions have garnered particular attention from the provider community.

An effective compliance program is essential to help avoid and defend against potential FCA actions, including qui tam suits. An effective compliance program should incorporate billing and coding audits and ongoing compliance training. A compliance program should encourage employees and other individuals with potential fraud and abuse concerns to initially report their concerns internally in a non-retaliatory environment. With this, providers have an opportunity to correct issues once they become aware of them—reducing the possibility that the government will claim “knowledge” or “deliberate ignorance” or “reckless disregard” which then triggers FCA penalties.

In the next article, we will explore specific applications of the FCA in the nursing home/senior housing context.
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