Healthcare fraud is costing our country literally billions of dollars.  In 2017, the DOJ recovered over $2 billion in healthcare fraud.  The government’s number one tool for recovering defrauded money is the False Claims Act.   The FCA incentivizes whistleblowers, who are often employees, to report fraud by rewarding whistleblower with a percentage of any recovery.

One of the most common fraudulent schemes, and one of the most litigated, in healthcare fraud is billing for services that are not medically necessary. Before a provider may bill a federal/state program for medical services, the medical service must be “reasonable and necessary.”

Recent case law has held for a medical service to be considered unnecessary, the service must meet the “objective falsity” test.  A FCA claim about exercising medical or clinical judgment cannot survive on mere subjective clinical analysis but must identify objective facts at odds with the exercise of judgement. AseraCare, Inc., 2016 WL 1270521 (N.D Ala. Mar 31, 2016)

The 6th Circuit in United States v Paulus, 894 F.3d 267, held opinions supporting a medical judgment held by a provider may trigger liability when the opinions are not honestly held or when the provider knows the facts to be inconsistent with the provider’s opinions.

Although a battle of medical experts is sure to follow when alleging a medical service is unnecessary, a jury makes the final judgement.  If you have question about the False Claims Act and healthcare fraud, contact Miller Law Group, PLLC for a free consultation, or call 919-348-4361.