Health Care Fraud

By Chimon, Jason; Chipev, George C. et al. | American Criminal Law Review, Spring 2011 | Go to article overview

Health Care Fraud


Chimon, Jason, Chipev, George C., Feulner, Timothy, American Criminal Law Review


 I.  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 Willful
           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, .3 percentage point higher than projected before reform. (2) With federal spending for the Medicare and Medicaid programs projected to reach $842 billion in 2011, (3) the Medicare and Medicaid programs comprise the largest single purchaser of health care in the worId. …

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