January 14, 2020

Anti-kickback efforts can wrongly accuse health care pros

A General Accounting Office report claims about $52 billion in Medicare payments, or about 10%, went to fraudulent claims in 2017. If this estimate is at all accurate, there is good reason for strong enforcement against Medicare fraud.

However, a sweep wide enough to take fraud on that scale seems likely to wrongly accuse some innocent providers.

Laws against kickbacks sound simple

The federal anti-kickback statutes prohibit payments in exchange for patient referral. More precisely, it is generally a violation to pay or receive compensation for referring patients for services reimbursed through any federal program.

As simple as it sounds, the laws can often become hard to interpret and safely obey.

Laws and fraud are both complex

Of course, the law prohibits quid pro quo exchanges of cash, gifts, favorable leases, pricing, employment and other considerations in exchange for referrals for any the federal government pays for such as procedures, prescriptions, diagnostic tests, products or facilities.

However, enforcement efforts could focus on anything between providers having to do with goods and services the government suspects may not be medically necessary.

After all, compensation could take the form of referring patients that do not need referral. Sending business someone’s way, perhaps in exchange for sending business back in return, might be Medicare fraud.

Appearances can deceive and investigations can break laws

The power of the federal government can be deeply intimidating, but it has the burden of proof. Many situations in complex medical care and the system that delivers it might lead to improper arrests and false accusations.

For example, there are several “safe harbor” provisions that can permit compensation in specific situations. They may involve care shortages, the sale of practices between practitioners or practitioners who are retiring or moving away.

Also, no fraud happens without the people involved understanding and intending to get or give compensation for referrals. It is up to the government to show knowledge and intention.

Finally, the government owes even medical practitioners all the basic rights the Constitution guarantees everyone else in America. This includes the right to an attorney and to avoid self-incrimination, the freedom from unreasonable search and seizure, and much more.

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