The government uses the False Claims Act (FCA) when looking to combat fraud involving federal programs like Medicare and Medicaid. One form of healthcare fraud the government often targets involves allegations kickbacks — financial incentives provided by medical companies to doctors in exchange for recommending or prescribing their products. Scenarios that often lead to these allegations can include prescribing specific drugs or devices in return for financial incentives from a manufacturer or referring patients to facilities while receiving kickbacks for those referrals. These practices can trigger FCA actions due to the submission of fraudulent claims to federal healthcare programs.
Historically, several high-profile cases have illustrated the severe repercussions of kickback-related FCA violations:
- A pharmaceutical company pays a substantial fine for providing kickbacks to doctors to prescribe their drugs.
- A medical device manufacturer faces penalties for paying doctors under the guise of consultancy fees, which were, in fact, incentives for using their products in surgeries.
- A physician and private practice pay fines to settle allegations payments from a laboratory for medical services, office rental space and equipment leases were actually illegal kickback payments.
There are situations when the law allows agreements between private practices, labs, and other practices. However, the rules that govern these arrangements are complex and the consequences for a violation can include steep financial penalties, criminal prosecution, and licensure sanctions as well as damage to one’s professional reputation.
What should I do if the government accuses my group of an FCA violation?
Three steps physicians who find themselves in this situation should take include the following.
- Gather documentation. It is important to maintain thorough documentation of all decisions related to prescriptions and referrals. Organize these documents as they will help to defend your practice during an official investigation.
- Review compliance programs. Ideally, you already have compliance programs to prevent unlawful incentives in place. Gather information about these programs to help establish that you are in compliance with applicable regulations. If you do not have such programs in place, take steps to begin the process.
- Seek legal counsel. There are some situations that warrant the use of an experienced attorney. This is one of them. An attorney with experience in this niche area of healthcare law can help to advocate for your interests in the FCA case while also protecting your medical license.
Accusations under the False Claims Act, especially those related to kickbacks, carry significant legal and professional risks. Defense strategies tailored to the specifics of your case help to protect against potentially career-ending consequences.
Attorney John Rivas is responsible for this communication.
