Provided by:  Jennifer Kirschenbaum, Esq.
February 13, 2020
 
Question:

Jennifer,
 
Can my practice get in trouble for resubmitting claims to Medicare?  We have found certain corrections that were needed for various reasons. 


Thank you,
Dr. K

 

Answer:

Answer provided by Maureen Beil, Esq., of our litigation team - 

Without more information it is speculative to answer.  But, taking the question on its face, my immediate instinct is to caution that changing medical records without a contemporaneous dating and signing is fraud.  So, if changes are not handled properly, then yes, there would be exposure. 

In particular, depending on the circumstances, there may be exposure under the False Claims Act (FCA) for egregious conduct.  

Generally, the FCA imposes civil liability on any healthcare professional who knowingly presents, or causes to be presented, a false or fraudulent claim for payment by the government, or who conspires to submit a false claim for payment by the government. While the FCA is not used to combat minor billing mistakes and errors, a healthcare professional may face liability under the FCA for adding details to a claim that were previously omitted or tampering with records.

In 2020, the federal government obtained $2.6 billion in recoveries from the health care industry for FCA violations.   Some recent FCA cases - 

•    In Godeke v. Kinetic Concepts, 937 F.3d 1201 (9th Cir. 2019), an action was brought under the FCA against the manufacturer of durable medical equipment for submitting  claims to Medicare without obtaining required written orders from physicians prior to delivering devices to Medicare patients. The manufacturer would submit claims using a certain billing modifier that represented to Medicare that all requirements for payment were satisfied, including the physician written orders. After submitting the claims, the manufacturer would then obtain the detailed written order from the physician. 
•    In United States v. Brookdale Senior Living Communities, 892 F. 3d 822 (6th Cir. 2018), cert. denied, 139 S.Ct. 1323 (2019), the court found that violations of the FCA were sufficiently alleged where defendants billed Medicare for patients placed in home health care services when such services were not medically necessary and  defendants did not obtain the required physician certification of need until after patients were discharged or completed an episode of care.
•    In United Sates v. Frank Tra, 403 f. Supp.3d 949 (D. Kan. 2019), the court found that claims for violations of the FCA were properly brought where the doctor treated patients with chemotherapy drugs when the relevant clinical information included no indication of cancer; “fractionated” the doses of chemotherapy drug infusions to increase the number of infusion services billed for each patient; and quadruple-billed the government for a single-dose drug.

For more information, feel free to contact our office or check out the OIG website - https://oig.hhs.gov/fraud/enforcement/cmp/index.asp.