Fraud, Waste, and Abuse

• Billing for services not rendered.
• Falsifying a patient’s diagnosis to justify unnecessary procedures.
• Accepting kickbacks for patient referrals.

• Ordering excessive diagnostic tests.
• Overuse of office visits.
• A pharmacy sending medications to members without confirming they still need them.

• Charging in excess for services or supplies.
• Providing medically unnecessary services.
• Going to different doctors or emergency rooms to obtain pain medication.

• Give your Community Health Plan of Washington ID card or ID number only to a health care provider, clinic, or hospital.
• Give your ID only when you are getting care.
• Never let anyone borrow your Community Health Plan of Washington ID card.
• Never sign a blank insurance form.
• Always be ready to show picture ID when checking in for a medical appointment.
• Be careful about giving out your Social Security number.

The civil FCA (31 United States Code (U.S.C.) Sections 3729–3733), protects the Federal Government from being overcharged or sold substandard goods or services. The civil FCA imposes civil liability on any person who knowingly submits, or causes the submission of, a false or fraudulent claim to the Federal Government.

The terms “knowing” and “knowingly” mean a person has actual knowledge of the information or acts in deliberate ignorance or reckless disregard of the truth or falsity of the information related to the claim. No specific intent to defraud is required to violate the civil FCA.

Examples: A physician knowingly submits claims to Medicare for medical services not provided or for a higher level of medical services than provided.

Penalties: Civil penalties for violating the civil FCA may include recovery of up to three times the amount of damages sustained by the Government a result of the false claims, plus financial penalties per false claim filed.

Additionally, under the criminal FCA (18 U.S.C. Section 287), individuals or entities may face criminal penalties for submitting false, fictitious, or fraudulent claims, including fines, imprisonment, or both.

The False Claims Act allows people who are not affiliated with the government to file actions claiming fraud against a government contractor on the government’s behalf for:

• Presenting to the government a false claim for payment
• Causing someone else to submit a false claim for payment
• Making or using a false record or statement to get a claim paid by the government
• Conspiring to get a false claim paid by the government
• Making or using a false record to avoid or decrease an obligation to pay or reimburse the government

The False Claims Act provides protections for “whistleblowers.” A whistleblower is a person who raises a concern about wrongdoing occurring in an organization or body of people, usually from that same organization. Whistleblower protections:

• Allow individuals to report fraud anonymously, sue an entity on behalf of the government, and collect a portion of any resulting settlement.
• Prohibit employers from threatening, intimidating, or retaliating against employees, who in good faith report misconduct or wrongdoing.

Violations of the False Claims Act result in social and business consequences, causing irreparable damage to one’s reputation, and loss of business. In addition, violations may result in civil and monetary penalties, including:

• Civil penalties, as adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 S.C. 2461 note: Public Law 104–410)
• Exclusion from participation in Medicare and Medicaid
• Plus, treble damages suffered by the government
• Possible criminal prosecution and imprisonment
• Trial costs

Refer to https://www.govinfo.gov/app/details/USCODE-2011-title31/USCODE-2011-title31-subtitleIII- chap37-subchapIII-sec3730

The AKS (42 U.S.C. Section 1320a-7b(b)), makes it a crime to knowingly and willfully offer, pay, solicit, or receive any remuneration directly or indirectly to induce or reward patient referrals or the generation of business involving any item or service reimbursable by a Federal health care program. When a provider offers, pays, solicits, or receives unlawful remuneration, the provider violates the AKS.

NOTE: Remuneration includes anything of value, such as cash, free rent, expensive hotel stays and meals, and excessive compensation for medical directorships or consultancies.

Example: A provider receives cash or below-fair-market-value rent for medical office space in exchange for referrals.

Penalties: Criminal penalties and administrative sanctions for violating the AKS may include fines, imprisonment, and exclusion from participation in the Federal health care program. Under the CMPL, penalties for violating the AKS may include three times the amount of the kickback.

The “safe harbor” regulations (42 CFR Section 1001.952), describe various payment and business practices that, although they potentially implicate the AKS, are not treated as offenses under the AKS if they meet certain requirements specified in the regulations. Individuals and entities remain responsible for complying with all other laws, regulations, and guidance that apply to their businesses.

Refer to  https://www.govinfo.gov/app/details/USCODE-2010-title42/USCODE-2010-title42-chap7-subchapXI- partA-sec1320a-7 or https://oig.hhs.gov/compliance/safe-harbor-regulations/ for safe harbor protections.

The Physician Self-Referral Law (42 U.S.C. Section 1395nn), often referred to as the Stark Law, prohibits a physician from referring patients to receive “designated health services” payable by Medicare or Medicaid to an entity with which the physician or a member of the physician’s immediate family has a financial relationship, unless an exception applies.

Example: A physician refers a beneficiary for a designated health service to a clinic where the physician has an investment interest.

Penalties: Penalties for physicians who violate the Stark Law may include fines, CMPs for each service, repayment of claims, and potential exclusion from participation in the Federal health care programs.

For more information, refer to https://www.govinfo.gov/app/details/USCODE- 2010-title42/USCODE-2010-title42-chap7-subchapXVIII-partE-sec1395nn.

The Criminal Health Care Fraud Statute (18 U.S.C. Section 1347) prohibits knowingly and willfully executing, or attempting to execute, a scheme or lie in connection with the delivery of, or payment for, health care benefits, items, or services to either:

• Defraud any health care benefit program
• Obtain (by means of false or fraudulent pretenses, representations, or promises) any of the money or property owned by, or under the control of, any health care benefit program

Example: Several doctors and medical clinics conspire in a coordinated scheme to defraud the Medicare Program by submitting medically unnecessary claims for power wheelchairs.

Penalties: Penalties for violating the Criminal Health Care Fraud Statute may include fines, imprisonment, or both.

The Exclusion Statute (42 U.S.C. Section 1320a-7), requires the OIG to exclude individuals and entities convicted of any of the following offenses from participation in all Federal health care programs:

• Medicare or Medicaid fraud, as well as any other offenses related to the delivery of items or services under Medicare or Medicaid.
• Patient abuse or neglect.
• Felony convictions for other health care-related fraud, theft, or other financial misconduct.
• Felony convictions for unlawful manufacture, distribution, prescription, or dispensing controlled substances.

The OIG may impose permissive exclusions on other grounds, including:

• Misdemeanor convictions related to health care fraud other than Medicare or Medicaid fraud, or misdemeanor convictions for unlawfully manufacturing, distributing, prescribing, or dispensing controlled substances.
• Suspension, revocation, or surrender of a license to provide health care for reasons bearing on professional competence, professional performance, or financial integrity.
• Providing unnecessary or substandard services.
• Submitting false or fraudulent claims to a Federal health care program.
• Engaging in unlawful kickback arrangements.
• Defaulting on health education loan or scholarship obligations.

Excluded providers may not participate in the Federal health care programs for a designated period. If you are excluded by OIG, then Federal health care programs, including Medicare and Medicaid, will not pay for items or services that you furnish, order, or prescribe. Excluded providers may not bill directly for treating Medicare and Medicaid patients, and an employer or a group practice may not bill for an excluded provider’s services. At the end of an exclusion period, an excluded provider must seek reinstatement; reinstatement is not automatic.

CHPW’s contracted providers must screen individual and entities it hires or contracts with against the List of Excluded Individuals and Entities (LEIE) maintained by the Department of Health and Human Services (HHS) Office of the Inspector General (OIG) at http://oig.hhs.gov/exclusions/ and the System for Award Management (SAM) maintained by the U.S. General Services Administration (GSA) at https://www.sam.gov/. 

The CMP (42 U.S.C. Section 1320a-7a) authorizes OIG to seek CMPs and sometimes exclusion for a variety of health care fraud violations. Different amounts of penalties and assessments apply based on the type of violation. CMPs also may include an assessment of up to three times the amount claimed for each item or service, or up to three times the amount of remuneration offered, paid, solicited, or received. Violations that may justify CMPs include:

• Presenting a claim you know, or should know, is for an item or service not provided as claimed or that is false and fraudulent
• Violating the AKS

Making false statements or misrepresentations on applications or contracts to participate in the Federal health care programs

The CMS has a Preclusion List effective for claims with dates of service on or after April 1, 2019.

The Preclusion List is comprised of a list of prescribers and individuals or entities who:

• Are revoked from Medicare, are under an active reenrollment bar and CMS has determined that the underlying conduct that led to the revocation is detrimental to the best interests of the Medicare program.
• Have engaged in behavior for which CMS could have revoked the prescriber, individual or entity to the extent possible if they had been enrolled in Medicare and that the underlying conduct that would have led to the revocation is detrimental to the best interests of the Medicare program.
• Have been convicted of a felony under federal or state law within the previous 10 years and that CMS deems detrimental to the best interests of the Medicare program.

Health care providers receive a letter from CMS notifying them of their placement on the Preclusion List. They can appeal with CMS before the preclusion is effective. There is no opportunity to appeal with CHPW. CMS updates the Preclusion List monthly and notifies MA and Part D plans of the claim-rejection date, the date upon which we reject or deny a health care provider’s claims due to precluded status. Once the claim-rejection date is effective, a precluded health care provider’s claims will no longer be paid, pharmacy claims will be rejected, and the health care provider will be terminated from the CHPW network. Additionally, the precluded health care provider must hold Medicare beneficiaries harmless from financial liability for services provided on or after the claim-rejection date.

As contracted health care providers of CHPW, you must ensure that payments for health care services or items are not made to individuals or entities on the Preclusion List, including employed or contracted individuals or entities.

For more information on the Preclusion List, visit cms.gov

We follow, and require our care providers to follow, Medicare requirements for physicians and other practitioners who opt out of Medicare. If you opt out of Medicare, you may not accept federal reimbursement. Care providers who opt-out of Medicare (and those not participating in Medicare) are not allowed to bill Medicare or its MA benefit plans during their opt-out period for two (2) years from the date of official optout.

For our MA membership, we and our delegated entities do not contract with, or pay claims to, care providers who have opted-out of Medicare. Exception: In an emergency or urgent care situation, if you have opted out of Medicare, you may treat an MA beneficiary and bill for the treatment. In this situation, you may not charge the member more than what a non-participating care provider is allowed to charge. You must submit a claim to us on the member’s behalf. We pay Medicare covered items or services furnished in emergency or urgent situations.