Malpractice or Fraud? The False Claims Act and Quality of Care - - PDF document

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Malpractice or Fraud? The False Claims Act and Quality of Care - - PDF document

May 04, 2023 248 likes •344 views

Malpractice or Fraud? The False Claims Act and Quality of Care Issues Malpractice or Fraud? The False Claims Act and Quality of Care Issues Dan Mulholland Horty, Springer & Mattern False Claims Act Theories Based on Quality Lack of

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Malpractice or Fraud? The False Claims Act and Quality of Care Issues

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Malpractice or Fraud? The False Claims Act and Quality of Care Issues

Dan Mulholland Horty, Springer & Mattern

False Claims Act Theories Based on Quality

  • Lack of medical necessity
  • “Worthless” services
  • Negligent or “substandard” care
  • Violation of regulations
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Medical Necessity

Medicare only pays for services that are “reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member.”

42 U.S.C. § 1395y(a)(1)(A)

Worthless Services

“In a worthless services claim, the performance of the service is so deficient that for all practical purposes it is the equivalent of no performance at all.”

Mikes v. Straus, 274 F.3d 687, 703 (2d Cir. 2001)

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Negligent or Substandard Care

“permitting qui tam plaintiffs to assert that defendants’ quality of care failed to meet medical standards would promote federalization of medical malpractice, as the federal government or the qui tam relator would replace the aggrieved patient as plaintiff.”

Mikes v. Strauss, 274 F.3d 687, 701 (2d Cir. 2001)

Violation of Regulations

  • Conditions of Payment?
  • r
  • Conditions of Participation?
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High-Risk Areas

  • Interventional cardiology
  • Spine implants
  • Home Health/DME/SNFs

Anatomy of a Qui Tam Lawsuit

  • Complaint filed under seal by

“whistleblower”

  • Government investigates
  • Settlement discussions
  • Intervention or declination
  • Suit continues with or without

Government

  • Final settlement or judgment
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FCA Damages

  • 3X amount paid for false claims +
  • $5,500 to $11,000 per claim

Corporate Integrity Agreement

  • Intensive training
  • Reports to OIG
  • Independent review organization
  • Compliance consultant
  • Peer review consultant
  • $$$$$$$!
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Criminal Prosecutions

  • Physicians
  • Management

Other Regulatory Headaches

  • Licensure
  • Hospital
  • Physicians
  • Patient Safety Authority
  • CMS
  • Accreditation
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Patient Lawsuits

  • Malpractice
  • Class Actions

Physician Lawsuits

  • Defamation
  • Interference with contracts
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Should You Self-Disclose?

  • Department of Justice
  • Local U.S. Attorney
  • Main Justice in DC
  • OIG
  • PR challenge – how transparent

should you be?

How to Minimize Risk

  • Upgrade your peer review process
  • Review for medical necessity
  • Open lines of communication
  • Hospital peer review
  • Employed physician group
  • Compliance
  • Risk management
  • Take corrective action before problem

gets out of hand