Like it, hate it, or shrug your shoulders at it, the Affordable Care Act (ACA) of 2010 did some good: it amended federal anti-fraud statutes in several significant ways. The ACA strengthened some rules set down originally by the False Claims Act (FCA). Notably, the ACA laid down provisions that:
- Strengthened the anti-kickback statute (AKS)
- Amended overpayment fraud statutes with regard to the FCA’s rules
- Altered Medicare and Medicaid enrollment requirements for providers and suppliers
- Created a new protocol for disclosing violations of the “Stark Law,” or the prohibitions on physician self-referral.
Details on Changes to the False Claims Act via the ACA
One significant improvement impacting whistleblowers is the new provision, courtesy of the ACA, that limits something called the “public disclosure bar,” thus making it easier to bring a qui tam case. Formerly, the public disclosure bar required the court to dismiss a claim brought under the False Claims Act when the case’s allegations were founded on information considered public, and not brought by the whistleblower. The courts are still divided over the public disclosure bar and whether it should jurisdictionally limit cases, but the requirement that cases should automatically be dismissed due to public disclosure is no longer operative. The burden is now lighter for relators (those who bring qui tam cases under the FCA).
Other amendments that concern whistleblowers affect the anti-kickback statute and the overpayment fraud statutes, mentioned above:
- You can use violations of the AKS as the foundation for your qui tam case brought under the FCA.
- A violator of the AKS is no longer required to have specific knowledge of the statute broken, or to have specific intent.
- “Per se” violations of the overpayment fraud statutes can occur, meaning that no intent to commit fraud must be proven. The deadline to report and return any overpayments under the ACA is generally 60 days, with some exceptions.
Examples of False Claims Fraud under the ACA’s New Rules
Any time money is floating around, you can be sure that fraud is not far behind; bad people will always try to grab an illegal buck or two. In the case of the health care insurance marketplace, we have some sample fraud scenarios for you to consider. If you work in the industry, you might want to keep your eyes and ears open for false claims situations like the ones mentioned previously, or like the following ones:
- It comes to light that an insurance company is illegally denying payment for legitimate claims under the ACA. Examples of prohibited actions include denial of benefits or insurance coverage based on pre-existing conditions, limiting annual benefits, or not paying claims submitted for “basic health services.” Because insurance companies receive federal money under the ACA, these actions constitute false claims, creating cases that whistleblowers can bring.
- You find out that the insurance company or provider has violated either the overpayments rules or the anti-kickback statute. In a real-life suit that was one of the first cases brought under the statutes of the FCA and the ACA, Pediatric Services of America Healthcare, et al. (PSA), and Portfolio Logic, LLC, settled a case for $6.88 million to resolve allegations against PSA that they knowingly participated in certain overpayment situations, among other charges. The whistleblowers shared roughly $1.1 million in this 2015 qui tam
- The ACA has something called Premium Stabilization Programs, which are meant to keep the prices of insurance premiums relatively stable. Normally, only insiders would know of fraud in these areas, but because federal money is transferred to insurance companies under these programs, any fraud you uncovered would likely be actionable under the FCA and ACA.
Evidence of any variety of health insurance exchange fraud that involves federal money is worth bringing to light. We are just now starting to find out what kinds of whistleblower cases brought under the FCA and ACA will play out in our court system.
Blowing the Whistle? We Can Help You with Your Next Step.
If you think you have the facts needed to bring a whistleblower case, the experienced whistleblower attorneys at the Louthian Law Firm can review your case and help you file the appropriate disclosure statement. Under some circumstances, the government will intervene, or join in your lawsuit.
Your chances of succeeding are greater if your whistleblower claim is substantive, clear, and to the point. Because of this, meeting with a qualified whistleblower attorney can increase your chances of winning. The Louthian Law Firm can help you form your claim so that the government will be more inclined to intervene in your case; government intervention can sometimes increase the chances of recovering reward money. Even if the government decides not to intervene, it could still be a good idea to pursue your case without government involvement. Our strong support system can assist you through every step of the process.
For a free, confidential evaluation of your case, call the Louthian Law Firm today at 1-803-454-1200 or, if you prefer, you can fill out our online contact form.