Medicare and Medicaid Fraud

Practice Areas Whistleblower Law Medicare and Medicaid Fraud

Medicare & Medicaid Fraud – How to Blow the Whistle

The False Claims Act allows whistleblowers who blow the whistle properly to claim up to 30% of what the government recovers as a Medicare Whistleblower Award.  It is estimated that there are hundreds of billions of dollars a year lost due to fraud, which means whistleblowers could stand to receive aggregate awards in the billions if they file a qui tam lawsuit with the right whistleblower law firm.  For example, according to Government estimates, improper payments to healthcare professionals through Medicare and Medicaid exceeded $130 Billion in 2020.¹ Significant sums of taxpayer dollars—up to 10 percent of all healthcare expenditures nationally, by some estimates²—go to health care providers that cheat billions of dollars from federal and state health insurance programs.

Those who work in health care know that it’s not just the taxpayers who are being cheated; it’s the patients too, as some fraudulent conduct can and does lead to real patient harm.  The Medicare and Medicaid programs depend on whistleblowers with integrity stepping forward to blow the whistle to combat systemic fraud. It’s important to learn your rights if you’re thinking about blowing the whistle on Medicare fraud or Medicaid fraud – speak with a whistleblower law firm with experience fighting Medicare fraud and Medicaid fraud.

What is Medicare & Medicaid Fraud?

Medicare and Medicaid are government health insurance programs. Medicare is a federal health insurance program for people over 65, or certain younger people who have disabilities, or people with end-stage renal disease, otherwise known as ESRD.¹ Medicaid is a joint federal/state program that covers medical expenses for low-income individuals.² Medicaid provides health coverage to millions of Americans, including eligible low-income adults, children, pregnant women, elderly adults and people with disabilities. Medicaid is administered by states, according to federal requirements, and funded jointly by states and the federal government.

Because Medicare and Medicaid cannot review every single claim that is submitted before making payment, the Government places enormous trust in doctors and other healthcare providers to submit accurate and truthful claims. Indeed, “[t]he Government’s payment of claims is generally based solely on the provider’s representations in the claims documents.”³ The sobering reality is that many providers are willing to bend, and even break, the rules to increase their profits.

There are several common types of Medicare & Medicaid fraud: Upcoding & Unbundling, Billing for Non-existent or Unnecessary Services, Kickbacks, Pharmaceutical Fraud, and Telehealth Fraud – but there’s no end to the ways that health care providers systemically cheat the government.  So, if you see something that could be billing fraud, you should learn you have a free consultation with a Medicare fraud law firm or a Medicaid fraud law firm depending on the situation to understand your rights as a potential whistleblower and understand your potential liability if you continue to work in an environment with rampant fraud versus the chance of obtaining a Medicare whistleblower award if you blow the whistle the right way.

Upcoding & Unbundling

“Upcoding” refers to the submission of false or improper billing codes to obtain higher reimbursement from Medicare & Medicaid. Healthcare providers can upcode by making a false diagnosis for a more serious condition, exaggerating the amount of time they spent with patients, or billing for more expensive procedures than they provided.

A tell-tale sign of upcoding is if a provider automatically selects the highest level of service that can be billed, regardless of the individual needs of each patient. Another indicator of upcoding is missing or inadequate clinical documentation. As the maxim goes, “If it wasn’t documented, it didn’t happen.”

A violation similar to upcoding is called “unbundling.” Many medical services are supposed to be “bundled” together so that the healthcare provider receives only one lump sum payment for related procedures under one billing code. By splitting up these services into different codes, healthcare providers can illegally obtain duplicative payments from the government, that should have been paid in one bundle.  Also, if interrelated services are provided in the same timeframe, they should generally be covered by one reimbursement, so some providers fraudulently falsely separate out services over several days and bill as if they were provided in different timeframes, even though they were performed the same day,  to receive a larger reimbursement.  Some providers wrongly see these rules as just bureaucratic red tape, but disregarding coding rules solely to increase reimbursement constitutes Medicare fraud and/or Medicaid fraud.

Billing for Services Not Rendered or Not Medically Necessary

To be covered by Medicare & Medicaid, medical services and procedures require a doctor’s order attesting to the medical necessity of such services, and a significant amount of Medicare/Medicaid fraud involves the billing of medically unnecessary services, such as pointless diagnostic tests like ultrasounds or x-rays, or unneeded durable medical equipment (DME) like back and knee braces. In more egregious cases, doctors have actually performed unnecessary procedures and even unnecessary surgery!  Conduct in which patients’ insurance plans are used as nothing but checkbooks and the well-being of the patient is sacrificed to profits is of particular interest to government investigators.  Taxpayer harm is bad enough, but actual patient harm can (and should) trigger criminal as well as civil liability.

Another common Medicare fraud scheme is the use of remote doctors to sign orders and prescriptions for expensive medications, services and/or equipment, even though the doctors never see the patient. In July 2022, the Office of the Inspector General for the Department of Health and Human Services announced that the Government was investigating dozens of companies that paid physicians to “generate orders or prescriptions for medically unnecessary durable medical equipment, genetic testing, wound care items, or prescription medications.”⁴

Incident-to Billing Fraud

Generally, Medicare pays non-physician providers (NPPs), such as nurse practitioners and physician assistants, at a rate lower than what a physician would receive for the same type of care. But if the NPP’s care is “incident to” the care provided by a physician, the NPP can bill their services as though performed by the physician, to obtain the higher reimbursement rate. This is known as “incident-to billing.”

One key requirement of “incident-to billing” is that there be “direct supervision” of the NPP by the physician. This requires the supervising physician to be “present in the office suite and immediately available to provide assistance and direction throughout the time the aide is performing services.”

Many clinics and medical practices, including urgent care and family medicine practices, are staffed solely by nurse practitioners or physician assistants without a physician present on the premises. Even in doctors’ offices staffed by both physicians and nurses, the physicians may not always be present to supervise. If those nurses then bill their services as “incident to” a physician’s services even when the physician was not present, they would be violating incident-to rules and thereby committing Medicare fraud. As an example, in 2018, a dermatology practice in New York agreed to pay more than $811,000 to resolve incident-to billing fraud claims.⁵

Kickbacks & Physician Self-Referrals

Kickbacks are bribes paid in exchange for patient referrals to specific providers or facilities, or even a specific manufacturer of a drug or durable medical equipment. The offering, making, and receiving of any such kickbacks are prohibited by the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b, and submitting any claims for services tainted by a kickback constitutes Medicare and Medicaid fraud.

Similar to a kickback, a self-referral occurs when a physician refers a patient to a provider or entity that the physician has a financial relationship with. In such circumstances, the physician may have a financial incentive to refer patients to that entity or other provider. Physician self-referrals are proscribed by the Stark Law, 42 U.S.C. §§ 1395nn and 1396b(s).

You can read more on our Kickbacks page.

Pharmaceutical Fraud

Pharmaceutical companies do some wonderful things, but they sometimes cross the boundary between legal and illegal conduct in pursuit of profit. Pharmaceutical companies pay physicians kickbacks, including lavish meals and compensation for “speaker programs,” to endorse and prescribe their companies’ drugs to patients.  Pharmaceutical companies also sometimes advertise and market their drugs for various “off-label” uses, which are not approved by the Food and Drug Administration (FDA). Off-label uses are often experimental, not supported by long-term clinical studies, and pose safety risks for patients. Inducing providers to prescribe drugs for unapproved uses through illegal kickbacks can be the basis for False Claims Act (FCA) liability for Medicare & Medicaid fraud.

Pharma fraud cases under the FCA have reached eye-popping recoveries. In 2020, Novartis agreed to pay over $642 million to resolve claims that it violated the Anti-Kickback Statute.⁶ Similarly, in 2022, Biogen settled kickback allegations for $900 million.⁷

You can read more on our Pharma Fraud page.

Telehealth Fraud

CMS greatly expanded access to telehealth services during the pandemic by lifting traditional restrictions and adding new types of telehealth services covered by Medicare and Medicaid. According to one study, the number of telehealth visits for Medicare beneficiaries jumped from 840,000 visits in 2019 to more than 52 million visits in 2020.⁶

With this boom in popularity, telehealth fraud is also more prevalent. Common types of telehealth fraud include billing for telehealth office visits when there was no live interaction between patient and provider, billing multiple telehealth services over consecutive days, and upcoding the level of service provided. Telehealth also continues to play a significant role in DME fraud where remote physicians are paid kickbacks to sign orders for unnecessary equipment or services.

Whistleblowers who report Medicare and Medicaid fraud the right way can receive monetary awards under the False Claims Act. To learn more about your rights as a potential Medicare fraud whistleblower or Medicaid fraud whistleblower, you should speak with an experienced qui tam Medicare fraud law firm like Brown, LLC. Led by a former FBI Special Agent, Brown, LLC has recovered hundreds of millions of dollars. Learn your rights – call today for a free and confidential whistleblower consultation.