Healthcare Fraud and Abuse

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Fundamentals in Healthcare Law Curriculum
2021 – 2022 WEBINAR SERIES
PA R S O N S B E H L E . C O M
N AT I O N A L E X P E...

4
Legal Disclaimer
This webinar is based on available information as of November 17,
2021, but everyone must understand th...

5
Topics
• The basics of:
◦ Anti-Kickback Statute
◦ Physician Self Referral Law (STARK)
◦ False Claims Act - Whistleblower...

Anti-Kickback Statute

7
Basic Prohibition of Anti-Kickback
• Basic Prohibition (Part 1)
• The Medicare Anti-Kickback Statute prohibits a person ...

8
Basic Prohibition of Anti-Kickback
• Basic Prohibition (Part 2)
• The Medicare Anti-Kickback Statute prohibits a person ...

9
Basic Prohibition Restated
• If you are a health care provider, supplier, or vendor, you cannot
pay any person to refer ...

10
United States Healthcare Spending: Who Pays?
https://www.chcf.org/publication/us-
health-care-spending-who-pays/,
from ...

11
Five Factors of a Kickback Violation
1. The person or entity offering or receiving compensation must be a health care
p...

12
Safe Harbors for Anti-Kickback Statute
• Employment Relationships
• Personal Service Arrangements
• Rental of Office Sp...

Physician Self-Referral (STARK) Law

14
Hospitals and Physicians Make Up Large Part of U.S. Healthcare Spending
https://www.chcf.org/publication/us-
health-car...

15
Basic Prohibition of STARK
• If a physician (or an immediate family member of the physician) has a financial
relationsh...

16
Six Factors Needed for a STARK Violation
1. A physician who
2. Makes a referral
3. For designated health services (“DHS...

17
Basic Prohibition Restated
• If you are an entity that provides designated health services, don’t
accept referrals of p...

18
Key Definitions of STARK Prohibition
• Physician
◦ Doctor of Medicine or Osteopathy
◦ DDS/DMD
◦ Podiatrist
◦ Doctor of ...

19
Key Definitions of STARK Prohibition
• Immediate Family Member:
◦ Husband or wife
◦ Natural or adoptive parent
◦ Child ...

20
Key Definitions of STARK Prohibition
• Designated Health Services
◦ Clinical Laboratory Services
◦ Therapy Services (Ph...

21
Key Definitions of STARK Prohibition
• Financial Relationship
◦ Direct or indirect ownership or investment interest in ...

22
STARK Exceptions
• Whole Hospital
• Rental of Office Space and Equipment
• Employment Relationships
• Personal Service ...

Anti-Kickback and STARK Comparison

24
Basic Prohibition Comparison
• Intent
◦ Anti-Kickback
 Intent must be proven (knowing and willful conduct)
◦ STARK
 N...

25
Basic Prohibition Comparison
• Prohibited Acts
◦ Anti-Kickback
 Prohibits offering, paying, soliciting or receiving an...

26
Basic Prohibition Comparison
• Referrals
◦ Anti-Kickback
 Includes referrals from everyone (all persons and/or busines...

27
Basic Prohibition Comparison
• Penalties
◦ Anti-Kickback
 Civil and Criminal Penalties
◦ STARK
 Civil Penalties Only

28
Anti-Kickback Statute vs. Stark
Stark
General
Prohibition
Stark
Exceptions
“Intentional Kickback”
under Anti-Kickback
S...

29
Case Study: Jacobs v. Pocatello Women’s Health Clinic (2015)

False Claims Act – Whistleblower

31
What is the False Claims Act?
• The False Claims Act (“FCA”) is a federal law that imposes liability
on any person and ...

32
Lincoln’s Law
• The False Claims Act was
enacted in 1863 during the Civil
War to provide an incentive for
private indiv...

33
Whistleblower
• The False Claims Act includes what is known as a qui tam provision.
◦ A qui tam provision allows someon...

34
Key Definitions of the False Claims Act
• Knowingly
◦ Actual knowledge;
◦ Deliberate ignorance of the truth or falsity ...

35
Key Definitions of the False Claims Act
• Claim
◦ A demand for money or property made directly to the Federal Governmen...

36
Bottom Line: False Claims Act
• Because of the False Claims Act, the attitude that “the government
will never know” is ...

37
Case Study

Antitrust

39
Antitrust Laws
• There are three main federal antitrust laws:
◦ The Sherman Act of 1890
◦ The Clayton Act of 1914
◦ The...

40
Overarching Purpose of Antitrust Laws
• The goal of antitrust laws is to improve consumer welfare by
protecting competi...

41
Sherman Act
• Prohibitions
◦ Prohibits “every contract, combination, or conspiracy in restraint of trade,”
and any “mon...

42
Sherman Act
• Penalties
◦ Civil and Criminal
◦ Up to $100 million for a corporation
◦ Up to $1 million for an individua...

43
Clayton Act
• Prohibitions
◦ Prohibits price discrimination in the sale of goods of like grade and quality
that may cau...

44
Federal Trade Commission Act
• Prohibitions
◦ Prohibits “unfair methods of competition” and “unfair or deceptive acts o...

45
Why is Healthcare targeted by Antitrust Laws?
• Healthcare is not especially competitive due to insurance and
asymmetri...

46
Case Study: St. Alphonsus v. St. Luke’s

47
Case Study: St. Alphonsus v. St. Luke’s
Background
• In 2012, St. Luke’s Health System (Idaho’s largest health system)
...

48
Case Study: St. Alphonsus v. St. Luke’s
• In 2014, the District Court for the State of Idaho ordered St. Luke’s
and Sal...

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