Overview
The health care system depends on accurate patient medical records and accurate billing for patient services. On the forefront of our health care delivery system are health care providers such as doctors and hospitals, but behind the scenes are third parties who handle billing the government on behalf of these providers and provide the technology to enable providers to maintain patient medical records. While these third parties do not directly provide health care to patients, they nevertheless can engage in fraudulent conduct that violates the False Claims Act (FCA). The most prominent among these players are electronic health or medical record software vendors and third-party billers.
Electronic Health Record Fraud
Over the past decade, the government has encouraged health care providers to adopt and demonstrate their “meaningful use” of electronic health record (“EHR”) technology offered by various companies. It did so by making incentive payments available to eligible health care providers that adopted certified EHR technology and met certain requirements relating to their use of the technology. To obtain certification, companies that develop and market EHR technology to health care providers must demonstrate that their product satisfies all applicable HHS-adopted certification criteria. The health care system now relies heavily on such software to safely and accurately record and transmit vital health information. Medical professionals and patients depend on the security and accuracy of electronic health records to improve both the quality and coordination of health care services.
Examples of ways in which EHR companies have violated the FCA include:
- a vendor falsely certifying that its EHR product meets the “meaningful use” criteria required by HHS certification.
- a product not incorporating standardized clinical terminology necessary to ensure the reciprocal flow of information concerning patients and the accuracy of electronic prescriptions.
- flawed EHR software resulting in a health care provider claiming it was entitled to “meaningful use” incentive payments from the government when it was not.
- a vendor offering and paying kickbacks to health care providers to use or recommend the vendor’s EHR product instead of another vendor’s software.
Third-Party Billing Fraud
Health care providers often use third parties to handle their billings to and collections from government health care programs. This includes traditional third-party billers and, more recently, EHR companies that offer billing services in addition to electronic medical record products. These third-party billers charge for their services either on a fee basis or as a percentage of the reimbursements collected from the government.
Examples of ways in which third-party billers can run afoul of the FCA (with or without the health care provider’s direct knowledge or consent) include:
- upcoding a claim by assigning or adding inappropriate diagnosis codes that result in higher reimbursement in order to increase reimbursement.
- misrepresenting who provided the service (e.g., billing for a doctor visit when the patient was seen by a nurse practitioner, whose billing rate would be less).
- billing for an unlicensed health care provider.
- failing to return an overpayment received from the government.
How to Report Fraud by EHR Vendors and Third-Party Billers
The above are just some examples of the many different types of fraud that are actionable under the False Claims Act. Unfortunately, fraud continues to plague Medicare, Medicaid, and other federal health care programs and is not limited to the acts or settings described above. If you think that you have information related to health care fraud, please contact us for a free, confidential consultation.