Health care fraud.

• Author: Lundqvist, Hanna
• Position: I. Introduction to II. Statutes Addressing Medicare and Medicaid Fraud B. Medicaid Anti-Kickback Statute 4. Safe Harbor Provisions vii. Relationships Between Providers, p. 863-893 - Twenty-Seventh Annual Survey of White Collar Crime

1. INTRODUCTION II. STATUTES ADDRESSING MEDICARE AND MEDICAID FRAUD A. Medicaid False Claims Statute 1. Elements of the Offense a. Statement of Material Fact b. False Representation c. Knowing and Willful d. Knowledge of Falsity 2. Penalties B. Medicaid Anti-Kickback Statute 1. Elements of the Offense a. Knowing and Wilful b. Solicitation or Receipt of Remuneration c. For the Purpose of Inducing Referral of Business. 2. Defenses a. Unconstitutional Vagueness b. Entrapment by Estoppel c. Good Faith 3. Penalties 4. Safe Harbor Provisions a. Purpose b. Uncertainty in the New Regulations c. Enumerated Safe Harbors i. Investment Interest ii. Sale of Physician Practices, Practitioner Recruitment, and Obstetrical Malpractice Insurance Subsidies iii. Contracts for Space, Equipment, Personal Services, and Employment iv. Advertisements and Promotions v. Electronic Prescription Systems vi. Referral Services vii. Relationships Between Providers viii. Arrangements Between Providers and Health Plans ix. Relationships Between Providers and Suppliers x. Ambulance Replenishing d. Proposed Amendments C. Self-Referral/Stark Amendments 1. Elements of the Offense a. Financial Relationship b. Referral c. Submission of a Claim for Services d. Absence of an Exception or Safe Harbor 2. Penalties D. The Health Insurance Portability and Accountability Act of 1996 1. Offenses a. Health Care Fraud b. Theft or Embezzlement in Connection with Health Care c. False Statements Relating to Health Care Matters d. Obstruction of Criminal Investigations of Health Care Offenses 2. Defenses 3. Exemptions 4. Penalties III. PROSECUTING HEALTH CARE FRAUD WITH GENERAL FEDERAL STATUTES A. False Claims Act 1. Elements of the Offense a. Presentation of a Claim b. False, Fictitious, or Fraudulent Nature of a Claim c. Intent 2. Defenses 3. Penalties B. False Statements 1. Elements of the Offense a. Statement to a Governing Agency b. Falsity of Statement c. Intent 2. Defenses 3. Penalties C. Mail and Wire Fraud 1. Elements of the Offense a. Scheme or Artifice to Defraud b. Use of the Mails or Wire in Furtherance of the Scheme 2. Defenses 3. Penalties IV. ENFORCEMENT A. Introduction B. Entities Responsible for Enforcement 1. Federal Enforcement a. Department of Justice b. Department of Health and Human Services i. Health Care Financing Administration ii. Office of the Inspector General c. Private Parties and Qui Tam Actions 2. State Level Enforcement 3. Federal and State Cooperation 4. Compliance Programs I. INTRODUCTION

   The Centers for Medicare and Medicaid Services ("CMS"), formerly the Health Care Financing Administration ("HCFA"), (1) estimates that by the year 2019, health care spending will account for 19.6 percent of Gross Domestic Product, 0.3 percentage points higher than projected before reform. (2) With federal spending for the Medicare and Medicaid programs projected to reach $851 billion in 2012, (3) the Medicare and Medicaid programs comprise the largest single purchaser of health care in the world. (4) Thus, it is no surprise that criminals view health care fraud as a lucrative field for illicit profit. (5) Indeed, the National Health Care Anti-Fraud Association ("NHCAA") estimates conservatively that such fraud accounts for at least three percent of total health care expenditures, or more than $60 billion each year. (6) Because health care fraud costs taxpayers about $36 billion a year, (7) federal and state agencies have made health care fraud prosecution a primary focus. (8) In fiscal year 2010, the federal government negotiated or won approximately $2.5 billion in judgments and settlements, plus additional administrative impositions in health care fraud cases and proceedings. (9) In addition, the number of health care fraud cases referred for criminal prosecution by the Department of Health and Human Services ("HHS") has significantly increased. (10) Even when the recent comprehensive health care reform was still under consideration, countering fraud and abuse remained a priority. (11) Now that the Patient Protection and Affordable Care Act has been passed, important reforms will be implemented over the next several years that will allow government agencies and private insurers to "better detect, investigate and prosecute suspected fraud," as well as providing substantial additional funding for the Health Care Fraud and Abuse Control Program. (12) A major change may come when the government begins to use predictive modeling techniques to help combat fraud. (13) These techniques have often been used in the private sector and can be substantially more efficient than current government practices in identifying fraud. (14)

   The federal government concentrates on detecting and prosecuting health care fraud in its health care insurance programs, Medicare and Medicaid. (15) Statutes enacted to deal with fraud in these specific programs are necessary because, "[a]s the government's second largest social program, Medicare continues to be an attractive target for fraud and abuse." (16)

   Persons and organizations certified by HHS to receive payment under the Social Security Act are the most likely targets for Medicare and Medicaid fraud investigations. (17) Persons and organizations include hospitals, nursing and rehabilitation centers, managed care entities, health maintenance organizations ("HMO"), and intermediate carriers such as private insurance companies, private and public clinics, medical laboratories, durable medical equipment ("DME") providers, physicians, and physician practice groups. (18)

   Several government agencies are involved in decreasing health care fraud. The Department of Justice ("DOJ") and HHS provide monitoring and enforcement of health care fraud regulations. (19) Individual states assist the HHS Office of the Inspector General ("OIG") and CMS to initiate and pursue investigations of Medicare and Medicaid fraud. (20) In addition, OIG uses its permissive exclusion authority to induce providers to help track fraud through a voluntary disclosure program. (21) In prosecutions of fraud, DOJ employs the resources of its own criminal and civil divisions, as well as those of the U.S. Attorneys' Offices and the FBI. (22)

   Health care fraud poses a significant, ongoing, potential abuse to the public treasury. This Article will examine federal and state efforts to address this abuse. Section II of this Article examines the statutes specifically enacted to address Medicare and Medicaid fraud and reviews the elements, defenses, penalties, and safe harbor provisions for each statute. Section III of this Article discusses general federal statutes used to prosecute health care fraud, including the False Claims and False Statements Act and the Mail and Wire Fraud Act, and describes the elements of the offenses, available defenses, and penalties applicable under each statute. Section IV provides an overview of federal and state government agencies' efforts to investigate and prosecute health care fraud. (23)

2. STATUTES ADDRESSING MEDICARE AND MEDICAID FRAUD

   The U.S. Congress's response to the escalating increase in Medicare and Medicaid fraud and abuse has been to strengthen existing statutes. (24) The result is a statutory and regulatory scheme that creates civil and criminal sanctions for any person or legal entity that provides health care goods or services in a fraudulent or abusive manner. (25) The federal government may also bring criminal prosecution under the False Claims Act (26) or other criminal fraud statutes, which are addressed in Section III. (27)

   In four parts, this Section discusses statutes enacted to fight Medicaid and Medicare fraud and abuse. Section A discusses the Medicaid False Claims Statute. (28) Section B addresses the Medicaid Anti-Kickback Statute. (29) Section C examines the amendments that limit physician referrals. (30) Finally, Section D discusses the relevant provisions of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). (31)

   1. Medicaid False Claims Statute

      The Medicaid False Claims Statute criminalizes false statements or representations in connection with any application for claim of benefits or payment, (32) or the disposal of assets, (33) under a federal health care program. (34) While the Medicaid False Claims Statute was enacted to target false statements or representations specifically related to health care, the majority of prosecutions related to health care fraud and abuse continue to be brought under other statutes. (35)

      1. Elements of the Offense

         Under the Medicaid False Claims Statute, the government (36) must prove four elements to...